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HomeMy WebLinkAbout07-113 • Resolution No. 07-113 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH THE ACTIVE NETWORK, INC. FOR PURCHASE OF SOFTWARE FOR THE PARKS DEPARTMENT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED that Olufemi Folarin, City Manager, be and are hereby authorized and directed to execute an agreement on behalf of the City of Elgin with The Active Network, Inc. for the purchase of software for the parks department, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: May 9, 2007 Adopted: May 9, 2007 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk active NETWORK Software License Agreement (Schedule A) • • This document(the"Agreement"),consisting of: a. this cover page("Cover Page"), b. the attached table of licensed Software("Software Table");and c. the attached Terms and Conditions of the Software License Agreement("Terms and Conditions")constitutes the entire agreement between the undersigned customer("Customer")and The Active Network, Inc. ("TAN") -• whereby,and TAN and the Customer hereby agree that,TAN grants to the Customer the rights and licenses herein described regarding the installation and use of certain computer software for the prices described in the Software Table,as modified from time to time according to this Agreement.Any apparent contradiction among this Cover Page,the Software Table and/or the Terms and Conditions is to be resolved by giving priority to the Terms and Conditions,followed by the Cover Page,and finally the Software Table. Payment Terms for Software Licenses A. All prices are in the currency of the country of installation. B. Sales and any other applicable tax(es),duties or any other charges in the nature of taxes and duties are not included unless specifically identified as line items. C. Prices shown include freight F.O.B.the shipping point. D. No services(i.e. site preparation such as cabling and provision of electricity)are included in costs described herein. E. The following installment payment schedule is applicable;figures are percentages of total fees and other charges re:all Software licensed under this Agreement: Phase Start Date 50%of the fees applicable to the phase Phase End Date 50%of the fees applicable to the phase F. A Project Schedule will be established(see attached Active Project Schedule)through discussions between the Customer and TAN once this agreement has been signed. The Project Schedule will consist of standalone and separate phases.The Customer can, at any time,choose not to proceed with a subsequent phase.The Project Schedule will indicate the acceptance criteria for each phase. Unless indicated otherwise by the Customer,each phase is deemed to be complete unless TAN is notified by the customer within 15 calendar days after the Phase End Date,as specified in the Project Schedule.When deemed complete,the customer acknowledges that all project expectations have been met for the completed phase and there is no further recourse or liability for TAN. G. The Customer agrees, subject to any conditions, limitations, or deductions as defined in the Project Schedule,to pay to TAN for the performance of the work required under the Project Schedule to the satisfaction of the Customer in accordance with the fee structure as defined in the Software License Agreement and work estimates set forth in the Project Schedule. H. TAN will invoice the Customer for the amounts contemplated in paragraph E.All invoices are payable within 30 days of receipt thereof, and such receipt is deemed to occur as though such invoices were notices sent pursuant to section 9.3 of the Terms and Conditions.Overdue invoices will bear interest at the lesser of 1%per month, 12.68%per annum or the maximum rate permitted by law. (The remainder of this page is intentionally BLANK) www.activecommunities.com 1 800 661 1196 active NETWORK The parties hereto each acknowledge that they have read, understand and agree to be bound by this Agreement. P• CITY OF ELGIN B \� �► 1( 0 Full Legal Customer Name Authorized Signa Date •. - 150 DEXTER COURT Olufemi Fol.Kin, City IIta . 1 -r Address ELGIN, IL 60120-5555 Facsimile The Active Network,Inc. 164 April 26,2007 Authorized Signatory Date (The remainder of this page is intentionally BLANK) www.activecommunities.com 1 800 661 1196 active NETWORK Software Table: Licensed Active Software Modules Module(included modules in parentheses) Unit Price No.of Copies Total Cost WORKSTATION-BASED,CORE MODULES 1. Registration-(FlexReg&Program Maintenance) $1,750 5 $8,750 2. Reservations-(QuickRez&Facility Maintenance) $1,750 4 $7,000 3. Memberships-(Membership Maintenance) $1,750 3 $5,250 4 Point of Sale-(Touch Screen&POS Maintenance) $2,500 8 $20,000 5. League Scheduling $1,750 2 $3,500 6. Ticketing POS w/inventory-(Attractions) $2,500 7 Golf-Tee Time Reservation $4,500 8. Golf-Point of Sale w/lnventory-(Point of Sale for Golf workstations only) $5,500 g Golf-Point of Sale Beer Cart-(Point of Sale for mobile Golf workstations only) $5,000 10. Golf-Tee Time Reservations&Point of Sale wllnventory $9,000 2 $18,000 11 POS Plus $3,500 12. Report Inquiry $500 SERVER-BASED,CORE MODULES Enterprise Level 1-includes(Home Page,General Content(1 &2),Login,Survey, $15,000 Site Map,Calendar&Calendar Event,Link,Category,Search,Attachment,Quick 13. links,Quick Poll) Enterprise Level 2-includes(Home Page,General Content(1 &2),Login,Survey, $30,000 Site Map,Calendar&Calendar Event,Link,Category,Search,Attachment,Quick 14. links,Quick Poll+15K of add on modules) Enterprise Level 3-includes(Home Page,General Content(1&2),Login,Survey, $50,000 Site Map,Calendar&Calendar Event,Link,Category,Search,Attachment,Quick 15. links,Quick Poll+35K of add on modules) WORKSTATION-BASED,ADD ON MODULES 16. Scanning Station-(Membership,Childcare,Equipment) $500 17. Wireless station $100 18. Calendar Online $500 19. Kiosk $1,750 20. Tele Lines-(Reg&POS Plus-4 lines minimum) $1,750 21. Golf-Payment over IP credit car processing $1,500 22. Golf-Driver's License Capture $1,500 23. Active Customer Response user $1,000 SERVER-BASED,ADD ON MODULES 24. Payment Server(Credit,Debit and Electronic Funds Transfer) $5,000 25. Payment Server Enterprise $5,000 26. Payment Server Open API $5,000 27. TeleReg $5,000 28. TeIePOS Plus $5,000 29. Affinity Marketing $5,000 30. Customer-link-(SIS Integration,Customer Import tool) $5,000 31. Portal-link $5,000 32. Finance-link-(Financial Systems Integration) $2,500 1 $2,500 33. Brochure-link-(Desktop Publishing Integration) $2,500 1 $2,500 34. Fund Raising-link-(Raisers Edge integration) $5,000 35. Lighting-link-(Skylogix or Musco integration) $5,000 36. Bank-link $2,500 The Active Network,Inc. Page 3 of 9 tIVeNETW©RK 37 Databroker $5,000 38. Invoicing and Receivables $5,000 39. Department Connector $10,000 40. Activate POS $10,000 41 Golf-Tele-Reg-4 lines $6,000 42. Golf-Membership Database-(Golfer Database w/Photo Imaging) $2,500 43. Golf-Loyalty Rewards $2,500 44. Golf-Online Member billing $2,500 45. Golf-Remote Palm Starter Interface $2,500 46. Golf-Event Management $2,500 47 Golf-Accounting Interface $2,500 48 Golf-Food&Beverage Interface $2,500 49 Golf-Property Management Interface $2,500 50. Golf-Range Servant Interface $2,500 51. Golf-Multi Property Management Interface $1,500 52. Active Customer Response(Server+5 concurrent seats) $15,000 53. Blog $2,500 54. Digital Asset Gallery $2,500 55. Email Updates $2,500 56. FAQ $2,500 57. Google Site Map Integration $2,500 58 Photo Gallery $2,500 59 RSS $2,500 60. Application Form $5,000 81 Conference Management $5,000 62 Email Broadcast $5,000 63. Google Map $5,000 64. Google Mini Page type(not including the server) $5,000 65. Help Desk $5,000 66. Multi Site Map $5,000 67. People Finder $5,000 68. Project Team Dashboard $5,000 69. Request for proposal $5,000 70. Import Engine $20,000 ONLINE(Internet)SERVER-BASED MODULES 71. Registration Online $5,000 72. Reservation Online-(includes Availability) $5,000 73. Membership Renewal Online $5,000 74. League Scheduling Online $5,000 75. Multilingual Online $5,000 76. GIS-link $2,500 77. POS Plus Online $10,000 78. Online Client Access-(per 25 Concurrent Client Access Pack) $12,500 79. Online Ticketing $5,000 80. Golf-Tee Time Online Direct $10,000 81 Golf-Online Member Billing engine $2,000 82. Active Customer Response Citizen Online $5,000 SDK MODULES 83. ACM SDK(per developer) $5,000 The Active Network, Inc. Page 4 of 9 act`%t/eNETWORK 84. ACM SDK(enterprise) $20,000 SYSTEM MODULES-COSTS(included in costs of other licensed Modules) 85. 'System Utilities as defined in sect.1.1.q)of Terms and Conditions • ♦ • CUMULATIVE WORKSTATION-BASED MODULES 86. Customized Reports $250 2 $500 87. Multilingual-Front Desk $250 7 $1,750 Total Cost $69,750 The Active Network, Inc. Page 5 of 9 aCC'IVeNETWORK Terms and Conditions of Software License Agreement 1. Interpretation p) "Phase Start Date" means the date for the start of each Definitions For the Phase as indicated on the Project Schedule 1.1. purposes of interpreting this q) "Phase End Date" means the date for the end of each Agreement,the following terms will have the following meanings: Phase as indicated on the Project Schedule a) "Agreement"means this Software License Agreement. r) "Project Schedule" means the document detailing the b) "Client Workstation or Workstation" means a computer standalone and separate implementation phases attached to a local or wide area network (including an established through discussions between the Customer and Intranet), which accesses the Software or Enterprise TAN once this agreement has been signed. Database. s) "Software" means computer code and programs, in c) "Concurrent Use"means use at the same moment in time executable code form only, including related data files, to access a given server computer (of any kind) owned or rules, parameters and documentation, which have been controlled by the Customer. created or licensed by TAN and are identified in the d) "Customer"means the legal entity other than TAN entering Software Table as licensed (or sublicensed) to the this Agreement. Customer by TAN in connection with this Agreement,andlor e) "TAN"means The Active Network Inc. which are in the future provided to the Customer by TAN f) "Database Server"means the single server computer upon under any circumstances unless provided under a separate which the Enterprise Database is resident. licensing agreement. g) "Enterprise Database"means the MSDE, MS SQL Server t) "Software Table" means the table of TAN Software or Oracle database files containing customer data(which is Modules licensed hereunder, shown on the page of this owned by Customer) and which is accessed by the Agreement immediately following the Cover Page. Software. u) "System Utilities" includes the following: Accounting h) "Initial Installation"means initial installation of any Module Processes, Central Login, Log File, Copy Database, Edit on any server computer owned or controlled by the Database, Maintain Database, MSDE Tool, Oracle Setup Customer. Utility, Query Tool, System Maintenance, Upgrade i) "Internet Client" means a remote device capable of using Database and View Components. the Internet and either Internet Explorer 4.0 or higher to v) "User" means a person who accesses and uses any of the access selected Software on the Internet Server or the Software to access, use or affect the Enterprise Database Enterprise Database on the Database Server via the in any manner whatsoever. Internet Server. 1.2. Line Items—Any reference herein to a "line item" or"line j) "Internet Server"means a single server computer used by items" is a reference to the appropriate line item(s) of the the Customer which enables access to the Software by Software Table. individuals using an Intranet or the Internet, having a minimum configuration as set out in hardware specifications 1.3. Headings The headings contained in this Agreement are previously described to the Customer as applicable to the inserted for convenience and do not form a part of this Software to be installed and used upon it. Agreement and are not intended to interpret, define or limit the k) "IVR Server" means a single server computer used by the scope,extent or intent of this Agreement or any provision hereof. Customer for voice-recognition and telephone-based,rather 1.4. Active's software products are a collection of independent than computer-based, access to the Enterprise Database software modules and each module is independently functional by the Customer's clients, having a minimum configuration on its own. There are no dependencies within the modules of as set out in hardware specifications previously described each product family that inhibit independent operation and to the Customer as applicable to the Software to be acceptance. installed and used upon it. 2. GRANT OF LICENSES AND LIMITATIONS THEREON I) "Module"means a single type of Software referred to in any 2.1. TAN hereby grants to the Customer a non-exclusive and particular line item, such that each such line item refers to non-transferable right and license, subject to this Agreement,to one, and only one, Module, with respect to which one or install and/or use the Software as follows: more licenses may or may not be granted hereby. a) Workstation-Based Core and Add-on Modules - For m) "Core Module" means any item of Software listed, but not every Workstation-based Core and Add-on Module licensed in parentheses,in line items 1 through 12,which represent the Customer may install and use the module to access the the most commonly licensed modules. Enterprise Database on the Database Server provided that n) "Payment Server"means a single server computer used by the number of copies of any particular Workstation-based the Customer to process electronic payments from its Core and Add-on Module in use does not exceed the clients, having a minimum configuration as set out in number licensed,as outlined in the Software Table. hardware specifications previously described to the b) Server-based Core and Add On Modules—Subject to c), Customers as applicable to the Software to be installed and used upon it. the Customer may install one copy of each Server-based o) "Phase"means the software,services,third party products, Core or Add On Module licensed on each of as many maintenance, deliverables, and acceptance criteria to be Workstations as the Customer wishes, and may use and implemented between the Phase Start Date and the Phase permit use of such Modules by its clients,without limit as to End Date including the associated costs. the number Users or transactions which simultaneously use any such Module. The Active Network, Inc. Page 6 of 9 akethOONETWORK Terms and Conditions of Software License Agreement c) Exceptions Regarding Unlimited System Feature a) copies of each Module licensed hereunder for training and (Server Based Licensing): testing purposes,and i) Any TeleReg Server-based Add On Module licensed b) one copy of each Module licensed hereunder for backup may be installed as to one copy, on one IVR Server, purposes, per license acquired, and all such Modules together provided that all electronic copies made include screen displays may be in Concurrent Use by,at most,the number of of TAN's proprietary or intellectual property notices as recorded lines of the"TeleReg Lines"Module licensed; on the original copy provided by TAN,and the Customer affixes ii) Any Payment Server-based Add On Module licensed a label to each disk, reel or other housing for the medium on may be in Concurrent Use by,at most,the number of which each physical copy is recorded setting out the same lines of the Point of Sale Module, as applicable, proprietary and intellectual property notices as appear on the unit licensed. of Software from which the copy is made in the same manner as d) On-line (Internet), Server-based Licenses - For every those notices appear on that original copy. On-line (Internet), Server-based Module licensed the 2.3. Incidental Installation of System Feature Software — TAN Customer may: will not require any payment by the Customer for, and hereby i) install one copy of each such Module per license of releases the Customer with respect to any damages or claims to such Module on one Internet Server,and or by TAN relating to, unlicensed Modules listed in the Software iTable under "System Features" the Software for which is i) subject to e), permit Users to access and use such Modules to access the Database Server via Internet automatically installed on any hardware of the Customer in the Clients via a licensed Internet Server, process of installation of any other Module(s), provided that the Clients provided that connectingt any time,any or alle such ModulesmayCustomer shall not use,and shall not permit any other person to use,any such Modules. be in Concurrent Use by, at most, the number of licenses of the Online Client Access Module licensed 3. CHARGES AND PAYMENTS multiplied by twenty-five(25). 3.1. Software License Fees - The charges and payments e) Cumulative Workstation-based Licenses — For each applicable to the installation and use of the Software by the Cumulative Workstation-based Module licensed the Customer are set out on the Cover Page. Customer may: 3.2. Taxes and Other Charges — The Customer will pay all i) install one copy of such Module upon a single Client shipping & handling costs and all applicable sales, use, Workstation per license of such Module,and withholding and excise taxes, and any other assessments ii) permit Users using such licensed Client Workstation(s) against the Customer in the nature of taxes, duties or charges to use such provided that the however designated on the Software or its license or use,on or to copies Module(s),of such provided licensed only may be i number resulting from this Agreement, exclusive of taxes based on the ofnet income of TAN. Concurrent Use, and further only one copy may be in Concurrent Use on any given licensed Client 4. OWNERSHIP OF SOFTWARE Workstation(s). 4.1. Warranty of Title - TAN warrants that it has all rights f) The Customer hereby acknowledges that the mechanism necessary to make the grant of license herein by having all right, utilized by the Software to control the number of Users or title and interest in and to the Software or as licensee of all such Online Client Access which can simultaneously access and rights from the owner thereof. use Online (Internet) Server-based Modules licensed is 4.2. Retention of Rights by TAN and Customer's Obligations - based upon the number of Users who have at any time All proprietary and intellectual property rights, title and interest logged in to the Customer's computer network using their including copyright in and to the original and all copies of the passwords, such that any User so logged into that network Software and the documentation or any changes or modifications in a manner that would enable the User to access and use made to the Software or related documentation will be and the Modules listed in those line items will in fact reduce by remain that of TAN, or its licensor as the case may be. Without one the number of Users able to simultaneously access limiting the foregoing, the Customer will not any time whether those Modules,even if such User is not in fact accessing or before or after the termination of this Agreement: using any such Module. The Customer hereby waives a) reverse engineer, disassemble or decompile any Software any claim, and releases TAN from any such claim and or prepare derivative works thereof; from any losses or damages the Customer suffers in b) copy, transfer, display, or use the Software except as relation thereto, in connection with the inability of the expressly authorized in this Agreement; number of Users indicated in line item 78 to simultaneously access the Online(Internet)Server-based c) disclose, furnish, or make accessible to anyone any Modules licensed where such inability is the result of confidential information received from TAN or make any use Users not actually using the Modules licensed per thereof other than as expressly permitted under this those line items absorbing available login access in the Agreement, which confidential information is deemed to manner described in this provision. include the source and executable code of the Software and 2.2. Additional Copies - Customer will not make any copies of all related documentation; the Software, except as necessary for the installation permitted d) contest or do or aid others in contesting or doing anything hereby and except for: which impairs the validity of any proprietary and intellectual The Active Network, Inc. Page 7 of 9 aCtiVeNETW©RK Terms and Conditions of Software License Agreement property rights, title or interest of TAN in and to any liability hereunder with respect to any failure to so perform will be Software;or to use reasonable efforts to remedy any non-conformity,which is e) obliterate, alter, or remove any proprietary or intellectual reported to TAN in writing by Customer within that warranty period. In the event TAN is unable to remedy such non- property notices from the Software in its physical or electronic forms. conformity within a reasonable time using reasonable efforts, TAN may refund to Customer the license fee pertaining to the 4.3. Intellectual Property Indemnity by TAN TAN will defend or Software and this Agreement will be automatically terminated.All settle any claim made or any suit or proceeding brought against the Customer insofar as such claim, suit or proceeding is based warranty service will be performed at service locations on an allegation that any of the Software supplied to the designated by TAN. Customer pursuant to this Agreement infringes the proprietary 6. EXCLUSION OF WARRANTIES AND LIMITATION OF and intellectual property rights of any third party in or to any LIABILITY invention, patent,copyright or any other rights, provided that the 6.1. SPECIFIC EXCLUSION OF OTHER WARRANTIES-THE Customer will notify TAN in writing promptly after the claim, suit WARRANTIES SET OUT IN SECTIONS 4.1 AND 5.1 ARE IN or proceeding is known to the Customer and will give TAN LIEU OF ALL OTHER WARRANTIES, AND THERE ARE NO information and such assistance as is reasonable in the OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, circumstances. TAN will have sole authority to defend or settle OR GUARANTEES OF ANY KIND WHATSOEVER any such claim at TAN's expense. TAN will indemnify and hold APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW (IN the Customer harmless from and against any and all such claims CONTRACT OR TORT) OR CUSTOM, INCLUDING, BUT NOT and will pay all damages and costs finally agreed to be paid in LIMITED TO THOSE REGARDING MERCHANTABILITY, settlement of such claim,suit or proceeding.This indemnity does FITNESS FOR PURPOSE, DURABILITY,CORRESPONDENCE not extend to any claim, suit or proceeding based upon any TO SAMPLE, TITLE, DESIGN, CONDITION, OR QUALITY. infringement or alleged infringement of copyright by the WITHOUT LIMITING THE ABOVE,TAN DOES NOT WARRANT combination of the Software with other elements not under TAN's THAT ANY SOFTWARE PROVIDED HEREUNDER WILL MEET sole control nor does it extend to any Software altered by the THE REQUIREMENTS OF CUSTOMER OR THAT THE Customer either by enhancement or by combination with OPERATION OF SOFTWARE PROVIDED HEREUNDER WILL product(s) of the Customer's design or formula. The foregoing BE FREE FROM INTERRUPTION OR ERRORS. states the entire liability of TAN for proprietary and intellectual 6.2. RESTRICTIONS ON WARRANTY - TAN HAS NO proprietary rights infringement related to the Software. If the OBLIGATION TO REPAIR OR REPLACE SOFTWARE Software in any claim, suit or proceeding is held to infringe any DAMAGED BY ACCIDENT OR OTHER EXTERNAL CAUSE, proprietary or intellectual property rights of any third party and OR THROUGH THE FAULT OR NEGLIGENCE OF ANY PARTY the use thereof is enjoined or, in the case of settlement as OTHER THAN TAN. referred to above,prohibited,TAN will have the option,at its own 6.3. NO INDIRECT DAMAGES — WITHOUT LIMITING THE expense, to either (i) obtain for the Customer the right to GENERALITY OF SECTIONS 6.1 AND 6.4, IN NO EVENT WILL continue using the infringing item, or (ii) replace the infringing TAN BE LIABLE TO THE CUSTOMER OR TO ANY OTHER item or modify it so that it becomes non infringing, provided that PARTY FOR INDIRECT DAMAGES OR LOSSES (IN no such replacement or modification will diminish the CONTRACT OR TORT), INCLUDING BUT NOT LIMITED TO performance of the Software. DAMAGES FOR LOST PROFITS, LOST SAVINGS, OR 4.4. Intellectual Property Indemnity by the Customer — The INCIDENTAL,CONSEQUENTIAL,OR SPECIAL DAMAGES. Customer will defend or settle any claim made or any suit or 6.4. LIMITS ON LIABILITY — IF, FOR ANY REASON, TAN proceeding brought against TAN insofar as such claim, suit or BECOMES LIABLE TO THE CUSTOMER OR ANY OTHER proceeding is based on (i) an allegation that any Software PARTY FOR DIRECT OR ANY OTHER DAMAGES FOR ANY licensed to Customer pursuant to this Agreement has been CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM installed, used or otherwise treated in a manner contrary to the OF ACTION(IN CONTRACT OR TORT),THEN: terms of this Agreement or the intellectual property rights of the provider of that Software, provided that TAN will notify the A) THE AGGREGATE LIABILITY OF TAN FOR ALL Customer in writing promptly after the claim,suit or proceeding is DAMAGES AND LIABILITY INCURRED BY CUSTOMER known to TAN and will give the Customer information and such AND ALL OTHER PARTIES IN CONNECTION WITH THE assistance as is reasonable in the circumstances.The Customer SOFTWARE IN QUESTION WILL BE LIMITED TO AN will have sole authority to defend or settle any such claim at the AMOUNT EQUAL TO THE AMOUNT PAID TO TAN FOR Customer's expense.The Customer will indemnify and hold TAN THE LICENSE OF THE MODULE OR MODULES WHICH harmless from and against any and all such claims and will pay GAVE RISE TO THE CLAIM FOR DAMAGES;AND all damages and costs finally agreed to be paid in settlement of B) IN ANY CASE THE CUSTOMER MAY NOT BRING OR such claim,suit or proceeding. INITIATE ANY ACTION OR PROCEEDING AGAINST TAN 5. WARRANTY ARISING OUT OF THIS AGREEMENT OR RELATING TO 5.1. Limited Warranty of Software TAN warrants that when ANY SOFTWARE PROVIDED HEREUNDER MORE THAN utilized by the Customer in a manner authorized hereunder, the TWO YEARS AFTER THE RELEVANT CAUSE OF Software will conform to the functional specifications set out in ACTION HAS ARISEN, the user documentation accompanying the Software for ninety 6.5. SEPARATE ENFORCEABILITY - SECTIONS 6.1 (90) days from Initial Installation. TAN's sole obligation and THROUGH 6.4 ARE TO BE CONSTRUED AS SEPARATE The Active Network, Inc. Page 8 of 9 active NETWORK Terms and Conditions of Software License Agreement PROVISIONS AND WILL EACH BE INDIVIDUALLY the number of copies of any particular Module(s) in Concurrent ENFORCEABLE. Use. 7. TERMINATION 9. GENERAL 7.1. Termination-This Agreement will terminate: 9.1. Complete Agreement; Modification- This Agreement a) at the option of either party if the other party materially constitutes the complete and exclusive statement of the defaults in the performance or observance of any of its agreement between TAN and the Customer relating to the obligations hereunder and fails to remedy the default within licensing of the Software, and supersedes all oral or written 30 days after receiving written notice thereof;and proposals, prior agreements and other prior communications b) without limiting a), at the option of TAN if the Customer between the parties, concerning the subject matter of this breaches section 3 of this Agreement Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties, c) notwishtanding any other provision hereof, Customer may except that TAN may fill future purchase or other orders for terminate this Agreement at any time upon thirty(30)days further goods or services available under this Agreement, and if prior written notice to TAN. In the event this Agreement is TAN does so the provisions of this Agreement will contain the so terminated, TAN shall be paid for services actually only commercial terms applicable to such transaction despite performed, and reimbursable expenses actually incurred such purchase or other order stating otherwise. prior to termination,except that reimbursement shall not in 9.2. Force Majeure - Dates or times by which either party is any event exceed the total amount set forth under the required to perform under this Agreement, excepting the Software Table of this Agreement ($69,750.00). payment of any fees or charges due hereunder, will be Additionally, in the event this Agreement is so terminated, postponed automatically to the extent that any party is prevented TAN shall immediately cease the expenditure of any funds from meeting them by causes(other than inability to pay)beyond paid to TAN by Customer and shall refund to Customer any its reasonable control. unearned or unexpended funds. provided that the right of termination will be in addition to all other 9.3. Notices - All notices and requests in connection with this rights and remedies available to the parties for breach or default Agreement will be given to the respective parties in writing and by the other. will be deemed given as of the first business day of the notified party following the day the notice is faxed or sent via overnight 7.2. Suspension of Obligations- If either party should default in courier, providing a hard copy acknowledgment of such the performance or observance of any of its obligations successful faxed notice transmission or evidence of such hereunder, then, in addition to all other rights and remedies couriering, as applicable, is retained. Notice may also be available to the non-defaulting party, the non-defaulting party deposited in the Canadian mails (or if the Customer is resident may suspend performance and observance of any or all its outside Canada and is rendering the notice, in the mails of that obligations under this Agreement, without liability, until the other country), postage pre-paid, certified or registered, return receipt party's default is remedied, but this section will not permit the requested,and addressed to the parties as indicated on the face Customer to suspend its obligation to make payments owing in of this Agreement and receipt of any such notice will be deemed respect of the Software. to be effective as of the third business day following such 7.3. Return of Software - In the event of termination of this deposit. Agreement for any reason whatsoever, Customer will 9.4. Governing Law - This Agreement and performance immediately return to TAN all physical copies of Software hereunder will be governed by the laws of the jurisdiction where delivered by TAN to the Customer or otherwise in the Customer's the Database Server is situated excepting in the case of possession or control, except as expressly permitted by TAN to Louisiana when the laws of California will apply,or in the case of destroy,destroy all physical copies of the Software not returned Quebec when the laws of Ontario will apply. to TAN, delete all electronic copies of the Software from its 9.5. Non-Assignability-This Agreement is not assignable by the systems, and certify in writing to TAN that such actions have all Customer. Any assignment, purported assignment or attempt to been completed. assign by the Customer will be a material breach of this 8. AUDIT AND MONITORING RIGHTS Agreement and will be void. 8.1. TAN may,upon a minimum of 24 hours written notice to the 9.6. Survival - Sections 4, 6, 7.3 and 9 of this Agreement will Customer,attend upon the Customer's premises and verify that survive termination and expiration of this Agreement. the Software licensed pursuant to this Agreement is installed and 9.7. U.S. Government Restricted Rights - The Software and being used only as permitted hereby. Such inspections may documentation are provided with restricted rights. Use, occur a maximum of twice per calendar year, and will be duplication, or disclosure by the U.S. Government is subject to performed only during the Customer's regular business hours restrictions as set forth in subparagraph (c) (1)(ii) of The Rights and conducted in a manner so as minimize to the extent in Technical Data and Computer Software clause at DFARS reasonable any interference with the Customer's business. 252.227-7013, or subparagraphs (c) (1) and (2) of the Further,TAN may, using automatic means which do not interfere Commercial Computer Software - Restricted Rights at 48 CFR with the use of the Software by the Customer or Users other than 52.227-19, as applicable. The Manufacturer is The Active as described in this provision, monitor at any time usage of the Network Inc., Suite 160, 6400 Roberts Street, Burnaby, BC, Software by the Customer and or its Users,through monitoring of Canada,V5G 4C9. The Active Network, Inc. Page 9 of 9 active NETWORK General Software Services Agreement (Schedule B) This document(the "Agreement"), consisting of: a. this cover page ("Cover Page"), b. the attached table of Services ("Services Table"); c. the attached Terms and Conditions of General Software Services Agreement("Terms and Conditions"); and d. the attached form of Certificate of Insurance ("Certificate of Insurance") constitutes the agreement between the undersigned customer("Customer") and The Active Network, Inc. ("TAN") whereby,TAN and the Customer hereby agree that, TAN will provide to the Customer the Services described in this Agreement, for prices and at rates as described in the Services Table as modified pursuant to the Terms and Conditions.Any apparent contradiction among this Cover Page, the Terms and Conditions, the Services Table and/or the Certificate of Insurance is to be resolved by giving priority to the Terms of Conditions, followed by the Cover Page, followed by the Services Table, and finally the Certificate of Insurance. The parties hereto each hereby acknowledge that they have read, understand and agree to be bound by this Agreement. CITY OF ELGIN g . 1'x'4 _ Designated Customer contact Authoh=S atory __Red person/TAN System Administrator Full Legal Customer Name , �d site;jf man one,p . ide all 150 DEXTER COURT OLU EM ;OLARIN CITY Q,ko( /Ceo e Address Dat: /)r ligj r , ELGIN, IL 60120-5555 El , iI Y 11 - 431 - 61x1 Facsimile The Active Network, Inc. . April 26,2007 Authorized Signatory Date (The remainder of this page is intentionally BLANK) aCtive NETWORK Services Table Pre-Agreed Services Rate per Hour Number of Hours Total Services Cost A. Pre-Project Documentation $100 24 $2,400 B. Onsite Database&Software Installation $150 C. Remote/Web-based Database&Software Installation $100 8 $800 D. On-Site less than 3 days (PLUS AIRFARE) D.i. Standard Consultants $185 D.ii. Senior Consultant I Project Planner $220 D.iii. Technical Specialist $250 E. On Site 3 days or More (PLUS AIRFARE) E.i. Standard Consultants $150 88 $13,200 E.ii. Senior Consultant I Project Planner $190 24 $4,560 E.iii. Technical Specialist $220 F. e-Consulting (REQUIRES INTERNET ACCESS ON EACH PC) F.i. Standard Consultants $100 72 $7,200 F.ii. Senior Consultant I Project Planner $165 F.iii. Technical Specialist $195 G. Weekend Surcharge* G.i. Standard Consultants $75 G.ii. Senior Consultant I Project Planner $75 G.iii. Technical Specialist $75 NOTE THAT RATES SHOWN INCLUDE ALL TRAVEL EXPENSES OTHER THAN Totals 216 $28,160 AIRFARE (The remainder of this page is intentionally BLANK) The Active Network, Inc. Page 2 of 5 active NETWORK Terms and Conditions of General Software Services Agreement 1. DEFINITIONS d) Weekend surcharges apply to services provided on a Saturday, 1.1. Definitions - For the purposes of interpreting this Agreement, the Sunday,and on Friday for hours past the time at which the consultant following terms will have the following meanings: would be reasonably able to travel to the next destination on Friday. a) "Initial Installation"means the date upon which any of the Software 3. FEES AND PAYMENT has first been installed on any server computer owned or controlled by 3.1. Pre-Agreed Services The Customer will pay TAN the fees described the Customer. in the Services Table for Pre-Agreed Services. b) "Other Services" means Services other than Pre Agreed Services 3.2. Other Services - Upon subsequent agreement from time to time acquired by the Customer under this Agreement. between the Customer and TAN that the Customer will acquire Other c) "Pre-Agreed Services"means Services which are expressly listed in Services,the Customer will pay for such Other Services at the service rates the Services Table as being acquired hereunder by the Customer. in effect at the time of provision of such Other Services, provided that the d) "Release" means any release, update, patch, set of revisions, or service rates shown in the Services Table will be effective for the 6-month bug/permanent fix or temporary bypass solution released by TAN to its period following effective date of this Agreement, and thereafter relevant customers generally during the term of this Agreement,which provides service rates, if different from the rates contained in the Services Table,will enhancements and/or error corrections to the then-current Version or be provided to the Customer prior to such Other Services being rendered. Release, and where a new Version has been released and no new 3.3. Consulting and training Services include up to five(5)participants per Release has been released since the release of that Version, that class. Additional participants, to a maximum of ten (10) per class can be Version will also constitute a Release for the purpose of determining accommodated at an additional cost of$100 per hour per participant. whether Support or Maintenance is available with respect to that 3.4. Travel Expenses — Costs and rates as described in this Agreement Version.New Releases will be denoted by an increase to the version include all TAN personnel travel expenses other than airfare.The Customer number to the right of the decimal point such as from Release 1.1 to will pay all airfare relating to travel of TAN personnel relating to Services Release 1.2. provided at the Customer's location,which airfare will unless urgency on the e) "Services"means any and all types of services which TAN provides, part of the customer requires otherwise,be at"coach"rates. to the Customer and/or to other customers of TAN, in the course of 3.5. Shipping and HandlingThe Customer will payall shipping&handling TAN' business, including but not limited to services relating to the pp g pp n installation, implementation, customization, optimization, charges,applicable sales,use,withholding and excise taxes,and any other administration, training and troubleshooting of computers, computer assessments in the nature of taxes,duties or charges however designated software including the Software, computer networks, databases, on the Services rendered under this Agreement,exclusive of taxes based on internet-related equipment and applications, but expressly excludes the net income of TAN. Support and Maintenance as described in TAN's standard Software 3.6. Applicable Currency - Unless specifically stated otherwise, all prices Support and Maintenance Agreement. and amounts are in the currency of the country in which the Software is f) "Software" means computer code and programs, in executable code installed. form only, including related data files, rules, parameters and 3.7. Invoices(Delivery, Payability and Interest) -TAN will provide invoices documentation, which have been created or licensed by TAN and to the Customer for all amounts owing by Customer hereunder, such subsequently licensed by TAN to the Customer. invoices to be provided after provision of the Services to which they relate, g) "Version" means a version of the Software providing a particular and subsequently due within 30 days after receipt by the Customer. functionality, while a new Version of the Software will provide Overdue invoices shall bear interest at 1%per month,12.68/o per annum. new/additional functionality and/or improvements to a previous 4. ACCESS TO SYSTEM AND OTHER CUSTOMER OBLIGATIONS Version. New Versions will be denoted by a change to the version 4.1. Customer will provide,at no cost to TAN: number to the left of the decimal point such as from Version 1.0 to a) sufficient space to allow TAN personnel on the Customer's site to Version 2.0. perform the on-site Services acquired hereunder; 1.2. Headings-The headings contained in this Agreement are inserted for b) office supplies and services such as photocopying, facsimile and convenience and do not form a part of this Agreement and are not intended telephone access; to interpret,define or limit the scope, extent or intent of this Agreement or c) without limiting a), education and training facilities adequate to the any provision hereof. training services acquired hereunder, including classroom space, 2. SERVICES TO BE PROVIDED networked PCs (minimum one (1) PC for every two (2) training 2.1. TAN will provide to the Customer: participants),networked printing capability,computer display/projection a) all Pre-Agreed Services which the Customer hereby agrees, pursuant facilities,and flip chart or whiteboard,plus markers and other ancillary to the Services Table,to acquire;and supplies; b) all Other Services which the Customer from time to time agrees to d) subject to the security requirements of the Customer,24 hour access acquire,provided that no Services other than Pre-Agreed Services will to the Customer's system via either an always-available telephone be provided by TAN unless TAN has, prior to such Services being circuit or an always available internet connection to enable TAN or its rendered, received confirmation from the Customer that the Customer designated representative to perform any of the obligations placed wishes to acquire such Services and will pay for such Services under upon TAN by this Agreement.;and the terms of this Agreement;and e) subject to the security requirements of the Customer, remote dial c) Standard on-site services days are eight (8) hour days, included as up/internet access methods approved by TAN to allow TAN to remotely billable time are fifteen (15) minute morning and afternoon breaks as diagnose and correct errors in the Software and provide other well as one(1)hour lunch break,the minimum billable on-site period is Services. 8 hours. Standard e-Consulting (remote) services are provided in 4.2. Without limiting the Customer's obligations,Customer will: minimum four(4)hour increments. a) use its best efforts to upgrade to any new Release or Version of the Software that is designated for general distribution, as soon as possible after becoming aware of its availability; The Active Network, Inc. Page 3 of 5 aCtive NETWORK b) ensure that at all times at least one current staff person of the a) at the option of either party if the other party materially defaults in the Customer, who is the Customer contact person named on the Cover performance or observance of any of its obligations hereunder and Page and per c),has been fully trained on the Software; fails to remedy the default within 30 days after receiving written notice c) designate by written notice a single site and single person as the point thereof from the non-defaulting party; of contact for telephone or other contact,which site and/or person the b) at the option of either party if the other party becomes insolvent or Customer may change upon 14 days prior notice;and bankrupt or makes an assignment for the benefit of creditors, or if a d) provide particulars of the Customer's system configuration in sufficient receiver or trustee in bankruptcy is appointed for the other party,or if detail to allow TAN to effectively provide Services hereunder. any proceeding in bankruptcy, receivership, or liquidation is instituted 5. REPRESENTATIONS AND WARRANTIES against the other party and is not dismissed within 30 days following 5.1. Insurance—TAN represents and warrants that it does and will at all commencement thereof; times during the term of this Agreement maintain general liability insurance c) at TAN'option upon the expiry of sixty(60)days following issuance by as described in the Certificate of Insurance. TAN of an invoice to the Customer for fees payable under this 5.2. Limited Warranty of Services-TAN warrants that all services provided Agreement and such invoice remaining unpaid,provided that TAN has hereunder will be performed in full conformity with the Agreement,with the prior to terminating under this provision provided the Customer with at skill and care which would be exercised by those who perform similar least ten (10) days' prior written notice of such non-payment, which services at the time the services are performed, and in accordance with minimum 10-day period may expire before, simultaneously with, or accepted industry practice. In the event of a breach of the express after the sixty day period (Customer shall indemnify and reimburse warranties contained herein and/or in the event of non-performance and/or TAN for any attorneys fees incurred by TAN in connection with failure of TAN to perform the services in accordance with the Agreement, collection of moneys from Customer due to it nonpayment);or TAN will,at no cost to Customer,re-perform or perform the services so that d) at either party's option if the other party assigns or attempts to assign the services conform to the warranties. this Agreement other than as expressly permitted by this Agreement; 6. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY provided that these rights of termination will be in addition to all other 6.1. SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE rights and remedies available to the parties for any breach or default WARRANTIES SET OUT IN SECTION 5.1 AND 5.2 ARE IN LIEU OF ALL hereunder. OTHER WARRANTIES, AND THERE ARE NO OTHER WARRANTIES, e) Notwithstanding any other provision hereof, Customer may terminate REPRESENTATIONS, CONDITIONS, OR GUARANTEES OR ANY KIND this Agreement at any time upon thirty(30)days prior written notice to WHATSOEVER,EITHER EXPRESS OR IMPLIED BY LAW(IN CONTRACT TAN. In the event this Agreement is so terminated,TAN shall be paid OR TORT) OR CUSTOM, INCLUDING, BUT NOT LIMITED TO THOSE for services actually performed, and reimbursable expenses actually REGARDING MERCHANTABILITY, FITNESS FOR PURPOSE, incurred prior to termination, except that reimbursement shall not in CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, CONDITION, OR any event exceed the total amount set forth under the Services Table QUALITY,IN EFFECT REGARDING THE SERVICES. of this Agreement ($28,160.00). Additionally, in the event this 6.2. NO INDIRECT DAMAGES—IN NO EVENT WILL TAN BE LIABLE TO Agreement is so terminated, TAN shall immediately cease the CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT DAMAGES OR expenditure of any funds paid to TAN by Customer and shall refund to LOSSES (IN CONTRACT OR TORT) IN CONNECTION WITH THIS Customer any unearned or unexpended funds. AGREEMENT,INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST 8.2. Suspension of Obligations - If either party should default in the PROFITS, LOST SAVINGS, OR INCIDENTAL, CONSEQUENTIAL, performance or observance of any of its obligations hereunder, then, in PUNITIVE OR SPECIAL DAMAGES. addition to all other rights and remedies available to the non-defaulting 6.3. LIMITS ON LIABILITY-DESPITE ANY OTHER PROVISION OF THIS party, the non-defaulting party may suspend performance and observance AGREEMENT, IF FOR ANY REASON, TAN BECOMES LIABLE TO of any or all its obligations under this Agreement, without liability, until the CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR ANY OTHER other party's default is remedied, but this Section will not permit the DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF Customer to suspend its obligation to make payments owing in respect of THE FORM OF ACTION(IN CONTRACT OR TORT),THEN: Support and other Software Services. A) THE AGGREGATE LIABILITY OF TAN FOR ALL DAMAGES, 9. GENERAL INJURY, AND LIABILITY INCURRED BY CUSTOMER AND ALL 9.1. Complete Agreement; Amendments — This Agreement, as modified OTHER PARTIES IN CONNECTION WITH THIS AGREEMENT WILL and affected by TAN's standard Software license fees and the terms of any BE LIMITED TO AN AMOUNT EQUAL TO THE CHARGES PAID TO agreement between TAN and the Customer relating to licensing of Software TAN FOR THE SERVICES WHICH GAVE RISE TO THE CLAIM FOR (as opposed to the mere provision of Software, to which this Agreement DAMAGES;AND relates in respect of Releases and Versions), is the complete and exclusive B) CUSTOMER MAY NOT BRING OR INITIATE ANY ACT OR statement of the Agreement between the parties with respect to the subject PROCEEDING AGAINST TAN ARISING OUT OF THIS AGREEMENT matter contained herein and supersedes and merges all prior OR RELATING TO SERVICES MORE THAN TWO YEARS AFTER representations, proposals, understandings and all other agreements, oral THE CAUSE OF ACTION HAS ARISEN, or written, express or implied, between the parties relating to the matters 6.4. SEPARATE ENFORCEABILITY -SECTIONS 6.1, 6.2 AND 6.3 ARE contained herein.This Agreement may not be modified or altered except by TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH BE written instrument duly executed by both parties, except that TAN may fill INDIVIDUALLY ENFORCEABLE. future purchase or other orders for further goods or services available under this Agreement, and if TAN does so the provisions of this Agreement will 7. TERM contain the only commercial terms applicable to such transaction despite 7.1. Term-The term of this Agreement will commence on the date of its such purchase or other order stating otherwise. execution and, subject to termination as provided herein, will continue 9.2. Force Majeure - Dates or times by which either party is required to indefinitely. perform under this Agreement excepting the payment of any fees or charges 8. TERMINATION due hereunder will be postponed automatically to the extent that any party is 8.1. Termination-This Agreement will terminate: prevented from meeting them by causes beyond its reasonable control. The Active Network, Inc. Page 4 of 5 active NETWORK 9.3. Notices -All notices and requests in connection with this Agreement 9.4. Governing Law-This Agreement and performance hereunder will be will be given to the respective parties in writing and will be deemed given as governed by the laws applicable in the jurisdiction where the Software is of the first business day of the notified party following the day the notice is installed, excepting in the case of Louisiana when the laws of California will faxed or sent via overnight courier, providing a hard copy acknowledgment apply,or in the case of Quebec when the laws of Ontario,Canada will apply. of such successful faxed notice transmission or evidence of such couriering, 9.5. Non-Assignability-This Agreement is not assignable by the Customer, as applicable, is retained. Notice may also be deposited in the Canadian and any assignment, purported assignment or attempt to assign by the mails (or if the Customer is resident outside Canada and is rendering the Customer will be a material breach of this Agreement and will further be notice,in the mails of that country),postage pre-paid,certified or registered, void.TAN may assign its obligations under this Agreement to TAN's system return receipt requested, and addressed to the parties as indicated on the integrators or resellers or upon a merger or substantial sale of TAN's assets, face of this Agreement and receipt of any such notice will be deemed to be 9.6. Survival - Sections 6 and 9 will survive termination and expiration of effective as of the third business day following such deposit. this Agreement. The Active Network, Inc. Page 5 of 5 tive NETWORK Software Support and Maintenance Agreement (Schedule C) This document(the"Agreement"),consisting of: a. the cover pages(collectively, "Cover Page"), b. the attached table of supported Software("Software Table"); c. the attached description of levels of annual support and maintenance("Levels Description"); d. the attached Terms and Conditions of Active Support and Maintenance("Terms and Conditions");and e. the attached certificate of insurance("Certificate of Insurance")constitutes the agreement between the undersigned customer("Customer") and The Active Network, Ltd. ("TAN")whereby,and TAN and the Customer hereby agree that,the Customer will acquire,and TAN will provide,the software support and maintenance products and services described in this Agreement for the prices shown in the table below.Any apparent contradiction among this Cover Page,the Software Table,the Levels Description,and/or the Terms and Conditions is to be resolved by giving priority to the Terms and Conditions,followed by the Cover Page, Software Table and Levels Description in that order. Product or Service Description Cost 1. Support and Maintenance—Basic $14,821.89 2. Support and Maintenance—Premium RE:1 or 2:Preferred Renewal Date(Optional)- (mm,dd,yyyy) Total Cost $14,821.89 Payment Terms for Support and Maintenance 1. A Project Schedule will be established(see attached Active Project Schedule)through discussions between the Customer and TAN once this agreement has been signed.The Project Schedule will consist of standalone and separate phases. The Customer can, at any time,choose not to proceed with a subsequent phase. The Project Schedule will indicate the acceptance criteria for each phase. Unless indicated otherwise by the Customer,each phase is deemed to be complete unless TAN is notified by the customer within 15 calendar days after the Phase End Date,as specified in the Project Schedule.When deemed complete,the customer acknowledges that all project expectations have been met for the completed phase and there is no further recourse or liability for TAN, except for problems discovered by Customer after the expiration of such 15 calendar day period,but in no event shall TAN have liability in connection with such phase after 90 days after the Phase End Date for the applicable phase. 2. The cost for the Support and Maintenance services is payable annually in advance and is due in its entirety for the completed Phase on the Support Start Date, unless the Customer has specified a Preferred Renewal Date in the appropriate space in the table above in which case only the cost of Support and Maintenance prorated from the Support Start Date to the Preferred Renewal Date is payable on the Support Start Date.Thereafter,the Support and Maintenance fee is payable in advance on every annual anniversary of the Support Start Date or, if there is a Preferred Renewal Date,every anniversary of the Preferred Renewal Date(the applicable anniversary being the"Support Renewal Date").TAN will provide invoices to the Customer for all such amounts,such invoices due on the later of(a)the Support Start Date or applicable Support Renewal Date,as applicable,and (b)30 days after receipt of the invoice. Overdue invoices shall bear interest at 1 %per month, 12.68%per annum. 3. The annual cost of Support and Maintenance hereunder is 21.25%of the license fee which would be applicable if the Software with respect to which Support and Maintenance are provided hereunder were licensed anew by the Customer at TAN's standard license rates as they exist on the effective date hereof or the Support Renewal Date,as applicable, provided that, excluding increases due to Support and Maintenance of additional Software from one contractual year to the next, any increase in costs hereunder from one contractual year to the next may not exceed ten (10)percent of the Support and Maintenance fees payable for the year just ending upon that Support Renewal Date. 4. The Customer will pay all shipping&handling charges,applicable sales, use,withholding and excise taxes,and any other assessments in the nature of taxes, duties or charges however designated on the services rendered under this Agreement, exclusive of taxes based on the net income of TAN. 5. All prices are in the currency of the country in which the Software is installed. (The remainder of this page is intentionally BLANK] www.activecommunities.com 1 800 661 1196 tive NETWORK The parties hereto each hereby acknowledge that they have read, understand and agree to be bound by this Agreement. CITY OF ELGIN By•�� � Designated Customer contact _mss person/TAN System Administrator Au • • Signato • site if ••- han o provide all Full Legal Customer Name OLUFEMI FO ARIN, CITY � , 150 DEXTER COURT MANAGER / P Address Da e / fl V/4 ELGIN IL 60120-5555 t r ' '' - 03)-oa Facsimile The Active Network, Ltd. April 26, 2007 Authorized Signatory Date (The remainder of this page is intentionally BLANK) The Active Network, Ltd. Page 2 of 10 active NETWORK Software Table: Licensed Active Software Modules Module(included modules in parentheses) Initial No.of Copies Total Module Software of Module Support 1 Licensing Supported/ Maintenance Cost Maintained Cost WORKSTATION-BASED,CORE MODULES Registration-(FlexReg&Program Maintenance) $1,750 5 $1,859.38 ii. Reservations-(QuickRez&Facility Maintenance) $1,750 4 $1,487.50 iii. Memberships-(Membership Maintenance) $1,750 3 $1,115.63 iv. Point of Sale-(Touch Screen&POS Maintenance) $2,500 8 $4,250 v. League Scheduling $1,750 2 $743.75 vi. Ticketing POS w/inventory-(Attractions) $2,500 vii. Golf-Tee Time Reservation $4,500 viii. Golf-Point of Sale wlinventory-(Point of Sale for Golf workstations only) $5,500 ix. Golf-Point of Sale Beer Cart-(Point of Sale for mobile Golf workstations only) $5,000 x Golf-Tee Time Reservations&Point of Sale w/lnventory $9,000 2 $3,825 xi. POS Plus $3,500 xii. Report Inquiry $500 SERVER-BASED,CORE MODULES Enterprise Level 1-includes(Home Page,General Content(1&2),Login,Survey,Site Map, $15,000 Calendar&Calendar Event,Link,Category,Search,Attachment,Quick links,Quick Poll) xiii. Enterprise Level 2-includes(Home Page,General Content(1&2),Login,Survey,Site Map, $30,000 Calendar&Calendar Event,Link,Category,Search,Attachment,Quick links,Quick Poll+ xiv. 15K of add on modules) Enterprise Level 3-includes(Home Page,General Content(1&2),Login,Survey,Site Map, $50,000 Calendar&Calendar Event,Link,Category,Search,Attachment,Quick links,Quick Poll+ xv. 35K of add on modules) WORKSTATION-BASED,ADD ON MODULES xvi. Scanning Station-(Membership,Childcare,Equipment) $500 xvii. Wireless station $100 xviii. Calendar Online $500 xix. Kiosk $1,750 xx. Tele Lines-(Reg&POS Plus-4 lines minimum) $1,750 xxi Golf-Payment over IP credit car processing $1,500 xxii. Golf-Driver's License Capture $1,500 xxiii. Active Customer Response user $1,060 SERVER-BASED,ADD ON MODULES xxiv. Payment Server(Credit,Debit and Electronic Funds Transfer) $5,000 xxv. Payment Server Enterprise $5,000 xxvi. Payment Server Open API $5,000 xxvii. TeleReg $5,000 xxviii. TeIePOS Plus $5,000 xxix. Affinity Marketing $5,000 xxx. Customer-link-(SIS Integration,Customer Import tool) $5,000 xxxi. Portal-link $5,000 xxxii. Finance-link-(Financial Systems Integration) $2,500 1 $531.25 xxxiii. Brochure-link-(Desktop Publishing Integration) $2,500 1 $531.25 xxxiv. Fund Raising-link-(Raisers Edge integration) $5,000 xxxv. Lighting-link-(Skylogix or Musco integration) $5,000 The Active Network, Ltd. Page 3 of 10 active NETWORK xxxvi. Bank-link $2,500 xxxvii. Databroker $5,000 xxxviii. Invoicing and Receivables $5,000 xxxix. Department Connector $10,000 xl. Activate POS $10,000 xli Golf-Tele-Reg-4 lines $6,000 xlii. Golf-Membership Database-(Golfer Database w/Photo Imaging) $2,500 Golf-Loyalty Rewards $2,500 xliv Golf-Online Member billing $2,500 xlv. Golf-Remote Palm Starter Interface $2,500 xlvi. Golf-Event Management $2,500 xlvii. Golf-Accounting Interface $2,500 xlviii. Golf-Food&Beverage Interface $2,500 xlv x Golf-Property Management Interface $2,500 Golf-Range Servant Interface $2,500 Golf-Multi Property Management Interface $1,500 ii. Active Customer Response(Server+5 concurrent seats) $15,000 Blog $2,500 iv. Digital Asset Gallery $2,500 v Email Updates $2,500 vi. FAQ $2,500 vii. Google Site Map Integration $2,500 viii, Photo Gallery $2,500 RSS $2,500 x Application Form $5,000 xi. Conference Management $5,000 xii. Email Broadcast $5,000 xiii. Google Map $5,000 xiv. Google Mini Page type(not including the server) $5,000 xv. Help Desk $5,000 xvi. Multi Site Map $5,000 xvii. People Finder $5,000 xviii. Project Team Dashboard $5,000 xvix. Request for proposal $5,000 Import Engine $20,000 ONLINE(Internet)SERVER-BASED MODULES xxi. Registration Online $5,000 xxii. Reservation Online-(includes Availability) $5,000 xxiii. Membership Renewal Online $5,000 xxiv. League Scheduling Online $5,000 xxv. Multilingual Online $5,000 xxvi. GIS-link $2,500 xxvii. POS Plus Online $10,000 xxviii. Online Client Access-(per 25 Concurrent Client Access Pack) $12,500 xxvix Online Ticketing $5,000 xxx Golf-Tee Time Online Direct $10,000 xxxi Golf-Online Member Billing engine $2,000 xxxii Active Customer Response Citizen Online $5,000 SDK MODULES The Active Network, Ltd. Page 4 of 10 active NETWORK ACM�S�0���� $5,000 �m^ ACM SDK�n��n�> $20.000 SYSTEM Modules) xxxv. System Utilities as defined in sect.1.1.q)of Terms and Conditions • • • CUMULATIVE ED MODULES xxxvi. Customized Reports $250 2 $106.25 xxvii. Multilingual-Front Desk $250 T $371.88 Total Cost m*.821.89 As per the Cover Page,the amounts shown in the"Initial Software Licensing Cost"and"Total Module Support/ Maintenance Cost"columns of the Software Table are applicable only upon the date of entry into this Agreement,and are subject to change thereafter in accordance with this Agreement's terms. The Active Network, Ltd. Page 5 of 10 active NETWORK Description of Levels of Annual Support and Maintenance 1. Basic Basic AnnuaSupport and Maintenance includes the following: • Unlimited toll free telephone support between 6:00 am and 5:30 pm Pacific Time ("PT" Mon—Fri ("Regular Support Hours") and • Unlimited dial-in access support (see Notes a, b and c below for qualification) for"system down"issues on 24 hour x 7 day per week basis ( Extended Support Hours") • Limited report customization & query support(Le. calls of 15 minutes duration or less) • Access to TAN's secure Web site • Regular documentation and communications provided to the Customer • New Releases and Versions as described in the Terms and Conditions Notes: a) Qualifying sites must have direct dial-in and Internet e-mail capability for Extended Support Hours. b) Support calls placed during Extended Support Hours must be placed through an authorized contact person. o) Under Basic Annual Support and Maintenance, Support during Extended Support Hours is available only for"system down"problems that result in the Customer's inability to fulfill critical business functions (i.e. those pertaining to core functionality such as processing registrations, memberships, rentals) and that have no reasonable work-around. All other calls—including all calls related to upgrades—placed by the Customer within Extended Support Hours will be billed to the Customer under a separate agreement. 2. Premium Premium Support provides for the same services as Basic Annual Support and Maintenance, and additionally provides that, subject to Notes a) and b) above, all Support available during Basic Support Hours is also available during Extended Support Hours. 3. Holiday Hours Canadian Office Holiday Hours The Canadian TAN Support Desk will be open withreduceduto#onthnfo||owingstatuUoryho|idaysGood Friday; Victoria Day (3rd Monday in May); Canada Day(July 1st); BC Day(1st Monday in August); Canadian Thanksgiving (2nd Monday in Oct); Remembrance Day (November 11); Boxing Day (December 26). On the following holidays, the Canadian TAN Support Desk will be closed: New Year's Day, Christmas Day, Labor Day(j$t Monday in September). United States Office Holiday Hours The U.G. TAN Support Desk will be closed: New Year's Day, Martin Luther King Day, President's Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Day after Thanksgiving, Christmas Day, Day after Christmas, Friday before New Year's Day The Active Network, Ltd. Page 6 of 10 aCti eNETWORK 1. DEFINITIONS • Basic Microsoft Corporation"Windows"functionality 1.1. Definitions - For the purposes of interpreting this Agreement, the (e.g.using File Manager or Explorer); following terms will have the following meanings: • Modem configuration&setup; a) "Initial Installation " means the date upon which any of the • Data corruption due to lack of disk space;and Software has first been installed on any server computer owned or • Loss of supervisor or other password controlled by the Customer. but expressly excludes any services or assistance relating to database b) "Maintenance" means the provision of error investigation and issues,unless acquired under an addendum to this Agreement. repair services and of new Versions and Releases,as described in k) "Support Start Date" means the day thirty (30) days after the Section 3.1. Phase End Date. c) "Module" means a single type of Software referred to in any I) "System Utilities" includes the following Modules: Accounting particular line item of the Software Table, such that each such line Processes, Central Login, Log File, Copy Database, Edit Database, item refers to one,and only one, Module, regardless of the number Maintain Database, MSDE Tool, Oracle Setup Utility, Query Tool, of copies referred to in such line item, except in line item xxxv to System Maintenance,Upgrade Database and View Components. which h)applies. m) "Version" means a version of the Software providing a particular d) "Phase" means the software, services, third party products, functionality, while a new Version of the Software will provide maintenance, deliverables, and acceptance criteria to be new/additional functionality and/or improvements to a previous implemented between the Phase Start Date and the Phase End Version. New Versions will be denoted by a change to the version Date including the associated costs. number to the left of the decimal point such as from Version 1.0 to e) "Phase Start Date" means the date for the start of each Phase as Version 2.0. indicated on the Project Schedule 1.2. Headings-The headings contained in this Agreement are inserted f) "Phase End Date" means the date for the end of each Phase as for convenience and do not form a part of this Agreement and are not indicated on the Project Schedule intended to interpret, define or limit the scope, extent or intent of this g) "Project Schedule" means the document detailing the standalone Agreement or any provision hereof. and separate implementation phases established through 2. SUPPORT SERVICES discussions between the Customer and TAN once this agreement 2.1. TAN will provide to the Customer Support for: has been signed. a) the Release of the Software that is from time to time the most h) "Release" means any release, update, patch, set of revisions, or recently-released,generally available Release,and bug/permanent fix or temporary bypass solution released by TAN to b) for the twenty-four (24) months immediately following general its customers generally during the term of this Agreement, which availability of the Release described in a), for the Release which provides enhancements and/or error corrections to the then-current immediately precedes that Release. Support services will not be Version or Release, and where a new Version has been released provided for any non-current Version or Release after twenty-four and no new Release has been released since the release of that (24) months from the date of availability of the newer Version or Version,that Version will also constitute a Release for the purpose Release. of determining whether Support or Maintenance is available with 3. MAINTENANCE SERVICES respect to that Version. New Releases will be denoted by an 3.1. With respect to any Release of the Software supported at the time, increase to the version number to the right of the decimal point such upon receipt of notification from the Customer's authorized contact as from Release 1.1 to Release 1.2. "Software" means computer code and programs, in executable personnel of an apparent error in the Software,TAN will use commercially code form only, including related data files, rules, parameters and reasonable efforts to promptly investigate the issue and determine documentation, which have been created or licensed by TAN and whether or not there is in fact an error and to advise the Customer that are identified in the Software Table as being subject to Support and either an error does not exist, or confirm that one does exist and what,if Maintenance in connection with this Agreement, and any Versions any, work-around exists. Errors will be deemed to be any design or or Releases thereof provided by TAN,in executable form. programming error in the Software attributable to TAN which prevents the Software from substantially complying with the functionality as set out in j) "Support" means the ongoing telephone and dial-in support and the user documentation(on-line or hard-copy)delivered with the Software problem resolution to assist the Customer in the use of the Software. and which materially affects the use, function or performance of the It may include but is not limited to response to inquiries regarding Software. When errors are confirmed, TAN will use commercially the operation, installation, administration and general technical reasonable efforts to correct such errors and provide Customer with a assistance requested by the Customer. Support also includes, correction or service pack for the Software as soon as it is practical in provided that such assistance can be provided in fifteen (15) TAN's sole discretion. minutes or less: 3.2. TAN will provide to the Customer, either physical form by mail or i) Limited assistance with report customization and the courier or in electronic form via the Internet, new Releases and Versions development of custom queries,and (and appropriate documentation) as such Releases or Versions (and ii) Assistance to isolate the source of problems and/or to documentation)become available,without additional charge. troubleshoot difficulties resulting from sources other than TAN 4. ASSIGNMENT OF PRIORITIES FOR SUPPORT ISSUES products or services,such as: • General network support for example network 4.1. New support incidents are assigned one of the following four priority access,printing,backup&restoration; levels,each with its respective standard completion target: • PC hardware trouble shooting; Call Priority Description Standard • PC setup,configuration and optimization; Level Completion Target • Network operating system configuration and A—Down Fatal issues that result in the Within 12 hours. functionality; Customer's inability to fulfill critical The Active Network, Ltd. Page 7 of 10 active NETWORK business functions (i.e. those voluntarily or otherwise,and the Customer wishes to receive Support and pertaining to core functionality Maintenance from TAN, the Customer will pay to TAN, prior to re- such as processing registrations, instatement of Support and Maintenance services: memberships, rentals) and that a) all fees that would have been payable hereunder had this have no reasonable work-around. Agreement been in force during the time during which Support and B—Urgent Serious issues significantly Within 24 hours. Maintenance rights had so lapsed,and impacting use of system but do not b) an additional fee of forty (40) per cent of the license fees which prevent core functions (such as would be payable if the Software to be subject to such Support and processing registrations, Maintenance were licensed anew at TAN's then-standard license memberships, rentals) from being fees on the date of re-instatement of Support and Maintenance fulfilled. rights. C—Normal All other issues, except those Within 36 hours. 7. ACCESS TO SYSTEM AND OTHER CUSTOMER OBLIGATIONS classified as D(Low). 7.1. Customer will provide,at no cost to TAN: D—Low Issues that are not time sensitive None a) sufficient space to allow TAN personnel on the Customer's site to or may be undertaken as customer perform the on-site Services acquired hereunder; service initiatives outside the b) office supplies and services such as photocopying, facsimile and scope of this Agreement. Customer will request a ranking of the call priority when initially reporting telephone access; the incident.Should there be any disagreement over the priority assigned c) without limiting a), education and training facilities adequate to the to a particular incident, or any other aspect of its handling, by TAN training services acquired hereunder, including classroom space, support staff, Customers are encouraged to first speak directly to the networked PCs(minimum 1 PC for every two training participants), support representative dealing with the issue in order to arrive at an networked printing capability, computer display/projection facilities, acceptable solution. In cases where escalation is desired or necessary, and flip chart or whiteboard, plus markers and other ancillary please contact the Supervisor, Support Services with any concerns you supplies; may have(phone 1-800-663-4991). d) subject to the security requirements of the Customer, 24 hour 5. EXCLUDED SUPPLIES AND SERVICES access to the Customer's system via either an always-available telephone circuit or an always available intemet connection to 5.1. Without limitation,the following supplies and services are excluded enable TAN or its designated representative to perform any of the from Support and Maintenance: obligations placed upon TAN by this Agreement.;and a) Services which are required to remedy problems that stem from e) subject to the security requirements of the Customer, remote dial changes to or defects in system configuration upon which the up/internet access methods approved by TAN to allow TAN to Software was initially installed; remotely diagnose and correct errors in the Software and provide b) Services which are required to remedy problems which do not stem other Services. from any defect in Software or from prior service hereunder 7.2. Without limiting the Customer's obligations,Customer will: c) Services which are required to remedy problems caused by lack of a) use its best efforts to upgrade to any new Release or Version of the training of Customer's personnel improper treatment or use of the Software as soon as possible after becoming aware of its Software; availability; d) Full report customization service; b) ensure that at all times at least one current staff person of the e) Any and all hardware support, maintenance or troubleshooting Customer,who is the Customer contact person named on the Cover issues, except as described in section 1.1.j)ii), regardless of the Page and per c),has been fully trained on the Software; source of such hardware. c) designate by written notice a single site and single person as the 6. FEES AND PAYMENT point of contact for telephone or other contact, which site and/or 6.1. In consideration of the Support and Maintenance provided person the Customer may change upon 14 days prior notice;and hereunder,Customer agrees to pay TAN the fees described on the Cover d) provide particulars of the Customer's system configuration in Page, as modified explicitly pursuant to this Agreement. In the event the sufficient detail to allow TAN to effectively provide Services Customer requires Support and Maintenance for additional Software,the hereunder. Customer agrees to pay TAN the additional Support and Maintenance 8. REPRESENTATIONS AND WARRANTIES fees applicable based upon the fees then in effect,prorated from the date 8.1. Insurance—TAN represents and warrants that it does and will at all of agreement to acquire such services to the Support Renewal Date. times during the term of this Agreement maintain general liability Payment,other than amounts,which may be adjusted under these Terms insurance as described in the Certificate of Insurance. and Conditions,will be in accordance with the payment terms set out on the Cover Page. 8.2. Limited Warranty of Services - TAN warrants that all services provided hereunder will be performed in full conformity with the 6.2. Unless the Software Table indicates otherwise, the fees charged Agreement, with the skill and care which would be exercised by those hereunder are applicable to Support and Maintenance of Software used who perform similar services at the time the services are performed,and with respect to only a single database of Customer data. If the Customer, in accordance with accepted industry practice.In the event of a breach of after entering this Agreement, places in service one or more additional the express warranties contained herein and/or in the event of non- databases to be used in relation to the Software, then for each such performance and/or failure of TAN to perform the services in accordance additional database an additional 21.25%of all Support and Maintenance with the Agreement,TAN will,at no cost to Customer,in addition to being fees charged hereunder, exclusive of such extra database fees, will be liable for damages as permitted by Section 9 immediately below re- payable. The Customer will notify TAN as soon as reasonably possible of perform or perform the services so that the services conform to the the installation or use of any such additional database(s). warranties. 6.3. If at any time after the Customer has initially licensed any of the 9. EXCLUSION OF OTHER WARRANTIES AND LIMITATION OF Software from TAN, the Customer's right to receive Support and LIABILITY Maintenance,or comparable services,from TAN under this Agreement or 9.1. SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE a comparable agreement has lapsed for any reason whatsoever, WARRANTIES SET OUT IN SECTION 8.1 AND 8.2 ARE IN LIEU OF The Active Network, Ltd. Page 8 of 10 active NETWORK ALL OTHER WARRANTIES, AND THERE ARE NO OTHER remedies available to the parties for any breach or default WARRANTIES, REPRESENTATIONS, CONDITIONS, OR hereunder. GUARANTEES OR ANY KIND WHATSOEVER, EITHER EXPRESS OR e) notwithstanding any other provision hereof, Customer may IMPLIED BY LAW (in contract or tort) OR CUSTOM, INCLUDING, BUT terminate this Agreement at any time upon thirty (30) days NOT LIMITED TO THOSE REGARDING MERCHANTABILITY,FITNESS FOR PURPOSE, CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, prior written notice to TAN. In the event this Agreement is so CONDITION,OR QUALITY. terminated, TAN shall be paid for services actually 9.2. NO INDIRECT DAMAGES—IN NO EVENT WILL TAN BE LIABLE performed, and reimbursable expenses actually incurred prior TO CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT to termination, except that reimbursement shall not in any DAMAGES OR LOSSES (in contract or tort) IN CONNECTION WITH event exceed the total amount set forth under the Software THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES Table: Licensed Active Software Modules table of this FOR LOST PROFITS, LOST SAVINGS, OR INCIDENTAL, Agreement ($14,821.89). Additionally, in the event this CONSEQUENTIAL,PUNITIVE OR SPECIAL DAMAGES. Agreement is so terminated, TAN shall immediately cease 9.3. LIMITS ON LIABILITY - IF FOR ANY REASON, TAN BECOMES the expenditure of any funds paid to TAN by Customer and LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR DIRECT OR shall refund to Customer any unearned or unexpended ANY OTHER DAMAGES FOR ANY CAUSE WHATSOEVER, AND funds.. REGARDLESS OF THE FORM OF ACTION(in contract or tort),THEN: 11.2.Suspension of Obligations If either party should default in the a) THE AGGREGATE LIABILITY OF TAN FOR ALL DAMAGES, performance or observance of any of its obligations hereunder,then, in INJURY, AND LIABILITY INCURRED BY CUSTOMER AND ALL addition to all other rights and remedies available to the non-defaulting OTHER PARTIES IN CONNECTION WITH THIS AGREEMENT party, the non-defaulting party may suspend performance and WILL BE LIMITED TO AN AMOUNT EQUAL TO THE CHARGES observance of any or all its obligations under this Agreement, without PAID TO TAN FOR THE SERVICES WHICH GAVE RISE TO THE liability,until the other party's default is remedied,but this Section will not CLAIM FOR DAMAGES;AND permit the Customer to suspend its obligation to make payments owing in b) CUSTOMER MAY NOT BRING OR INITIATE ANY ACT OR respect of Support and other Software Services. PROCEEDING AGAINST TAN ARISING OUT OF THIS 12. GENERAL AGREEMENT OR RELATING TO RELEASES OR SERVICES 12.1.Complete Agreement; Modification —This Agreement, as modified MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION HAS and affected by TAN's standard Software license fees and the terms of ARISEN. any agreement between TAN and the Customer relating to licensing of 9.4. SEPARATE ENFORCEABILITY-SECTIONS 9.1,9.2 AND 9.3 ARE Software (as opposed to the mere provision of Software, to which this TO BE CONSTRUED AS SEPARATE PROVISIONS AND WILL EACH Agreement relates in respect of Releases and Versions),is the complete BE INDIVIDUALLY ENFORCEABLE. and exclusive statement of the Agreement between the parties with 10. TERM respect to the subject matter contained herein and supersedes and 10.1.Term-The term of this Agreement will commence on the Support merges all prior representations, proposals,understandings and all other Start Date and, subject to termination as provided herein, will continue agreements, oral or written, express or implied, between the parties until the following Support Renewal Date, after which it will be relating to the matters contained herein. This Agreement may not be automatically renewed for subsequent one year terms on the same terms modified or altered except by written instrument duly executed by both and conditions as set out herein (with the exception of the fees payable parties except that TAN may fill future purchase or other orders for further which may be revised by TAN in accordance with this Agreement)upon goods or services available under this Agreement,and if TAN does so the TAN rendering an invoice therefor unless terminated by the Customer at provisions of this Agreement will contain the only commercial terms least ninety(90)days prior to the Support Renewal Date upcoming from applicable to such transaction despite such order stating otherwise. time to time. 12.2.Force Majeure-Dates or times by which either party is required to 11. TERMINATION perform under this Agreement excepting the payment of any fees or 11.1.Termination-This Agreement will terminate: charges due hereunder will be postponed automatically to the extent that a) at the option of either party if the other party materially defaults in any party is prevented from meeting them by causes beyond its the performance or observance of any of its obligations hereunder reasonable control. and fails to remedy the default within 30 days after receiving written 12.3.Notices-All notices and requests in connection with this Agreement notice thereof from the non-defaulting party; will be given to the respective parties in writing and will be deemed given b) at the option of either party if the other party becomes insolvent or as of the first business day of the notified party following the day the bankrupt or makes an assignment for the benefit of creditors,or if a notice is faxed or sent via overnight courier, providing a hard copy receiver or trustee in bankruptcy is appointed for the other party,or if acknowledgment of such successful faxed notice transmission or any proceeding in bankruptcy, receivership, or liquidation is evidence of such couriering, as applicable, is retained. Notice may also instituted against the other party and is not dismissed within 30 days be deposited in the Canadian mails(or if the Customer is resident outside following commencement thereof; Canada and is rendering the notice,in the mails of that country),postage c) at TAN's option upon the expiry of sixty days following issuance by pre paid,certified or registered, return receipt requested, and addressed TAN of an invoice to the Customer for fees payable under this to the parties as indicated on the face of this Agreement and receipt of Agreement and such invoice remaining unpaid, provided that TAN any such notice will be deemed to be effective as of the third business has prior to terminating under this provision provided the Customer day following such deposit with at least ten days' written notice of such non-payment, which 12.4.Governing Law - This Agreement and performance hereunder will minimum 10-day period may expire before, simultaneously with, or be governed by the laws applicable in the jurisdiction where the Software after the 60 day period;or is situated,excepting in the case of Louisiana when the laws of California d) at either party's option if the other party assigns or attempts to assign this will apply,or in the case of Quebec when the laws of Ontario,Canada will Agreement other than as expressly permitted by this Agreement; provided apply. that these rights of termination will be in addition to all other rights and 12.5.Non-Assignability - This Agreement is not assignable by the Customer, and any assignment, purported assignment or attempt to The Active Network, Ltd. Page 9 of 10 amothm NETWORK assign by the Customer will be a material breach of this Agreement and will further be void. TAN may assign its Support or Maintenance obligations under this Agreement to TAN's system integrators or resellers or pursuant to a merger or sale of substantially all of TAN'S assets. 12.6.Survival - Sections 6.3, 9 and 12 will survive termination and expiration of this Agreement. The Active Network, Ltd. Page 10 of 10 active NETWORK Third Party Product Purchase Agreement (Schedule D) This document(the"Agreement"),consisting of: a. the cover pages(referred to collectively as the"Cover Page"if and only if executed as the cover page to the complete Agreement,and otherwise subject to the Terms and Conditions), b. the attached Terms and Conditions of TAN Third Party Product Purchase Agreement("Terms and Conditions"), and c. any additional purchase order documentation delivered to TAN by the Customer constitutes the entire agreement between the undersigned customer("Customer")and The Active Network, Inc. ("TAN")whereby, and TAN and the Customer hereby agree that,TAN will provide to the Customer the Third Party Products described in this Agreement,for prices as described in the Third Party Products Table below as modified pursuant to the Terms and Conditions. Any apparent contradiction among this Cover Page,the Terms and Conditions and any additional purchase order documentation delivered to TAN by the Customer is to be resolved by giving priority to the Terms and Conditions,followed by the additional purchase order documentation,and then the Cover Page. Third Party Products Table: Third Party Products Description, Volumes and Prices Product Units Unit Price Total Cost Membership Hardware Zebra P310i Printer,no magstripe,USB and Parallel Int 2 $2,098 $4,196.00 Logitech Quickcam Pro 5000 4 $101 $404.00 Metrologic Orbit Omni-Directional Scanner(cable inluded) 2 $345 $690.00 Zebra Premier Cleaning Kit(25 swabs/50 cln crd) 4 $47 $188.00 Zebra P310i Series YMCKO Ribbon,330/roll 4 $100 $400.00 Zebra Adhesive Roller Cleaners(5 pk) 4 $26 $104.00 Zebra Cards,30 mil premier grade/500 cards/pack 4 $60 $240.00 Point of Sale Hardware 3M Microtouch 15in LCD w/Capacitive Screen,Serial 2 $720 $1,440 Total Cost: $7,662.00 Competitor Transition Credit 1 ($1,000) Shipping Details If this page is being provided by the Customer as part of purchase order documentation as described in section 2.2 of the Terms and Conditions,the desired date of receipt of the shipment of Third Party Products referred to herein is: (The remainder of this page is intentionally BLANK) www.activecommunities.com 1 800 661 1196 active NETWORK The parties hereto each acknowledge that they have read, understand and agree to be bound by this Agreement,or if this page is delivered by the Customer as purchase order documentation pursuant to section 2.2 of the Terms and Conditions,by the terms of this page as modified by the Agreement. as CITY OF ELGIN Balb ` _ Address shown foron shipmentleft: delivery,if other than y' _ Autho-—17 'nafory Full Legal Customer Name OLUFE I 0 ; N ' ITY ZI)/ ie 150 DEXTER COURT MANAGER Address Date /or) cy'_ ^ y ELGIN. TL 60120-5555 _}' 71,11} (�(/ X11 , (L iLb Facsimile The Active Network, Inc. April 26,2007 Authorized Signatory Date (The remainder of this page is intentionally BLANK) The Active Network, Inc. Page 2 of 5 active NETWORK Terms and Conditions of Third Party Product Purchase Agreement 1. INTERPRETATION accepted by TAN in writing. In any case,despite any indication to the 1.1. Definitions-For the purposes of interpreting this Agreement,the contrary contained in any such purchase order documentation, no following terms will have the following meanings: terms or conditions on purchase order documentation issued by the a) "Agreement" means this The Active Network Inc. Third Party Customer,other than the information required pursuant to section 2.2, Product Purchase Agreement. will be binding upon TAN, nor will any such terms or conditions b) "TAN"means The Active Network Inc. modify or supplement this Agreement in any way,notwithstanding the c) "Customer"means the legal entity other than TAN entering this fact that TAN may accept or otherwise approve such purchase Agreement. orders. TAN reserves the right to refuse any such purchase order for d) "Related Documentation" means any end user specifications, any reason not contrary to this Agreement,including without limitation manuals, instructions, and other materials, and any copies of pricing differences as described in section 3.2. any of the foregoing, in any medium, related to the Third Party 2.5. Additional Third Party Products —The Customer may purchase Products and supplied by TAN to the Customer with the Third Third Party Products in addition to those listed in the Third Party Party Products. Products Table by issuing additional purchase order documentation e) "Third Party Products"means those hardware,firmware and/or as described herein, provided that the supply(or non supply)of such software products, provided to TAN by third parties,listed on the additional Third Party Products will be subject to this Agreement as Cover Page, together with all user manuals and other though such additional Third Party Products had been included in the documents accompanying the delivery of the Third Party Third Party Products Table on the date of execution of the Cover Products, provided that the Third Party Products shall not Page subject to: include software developed by TAN. 2.6. the price for such additional Third Party Products being subject f) "Third Party Products Table" means the table on the Cover to agreement between the parties each in their own absolute Page. discretion,and g) "Warranty Period" means, in relation to any particular Third a) TAN having a right to discontinue delivery of such additional Party Products, the 90 days immediately following delivery of Third Party Products upon at least ninety(90)days written notice that Third Party Product to the Customer. to the Customer without any liability to the Customer whatsoever 1.2. Headings - The headings contained in this Agreement are for such discontinuance. inserted for convenience and do not form a part of this Agreement 2.7. Charge On/Security Interest in Third Party Products-TAN shall and are not intended to interpret, define or limit the scope, extent or have a charge against/ security interest in all Third Party Products, intent of this Agreement or any provision hereof. and all proceeds arising therefrom, until Customer has paid TAN in 2. PURCHASE AND SALE;SECURITY;DELIVERY full for all amounts owing from Customer to TAN in connection with the particular shipment of which any Third Party Products form a part. 2.1. Purchase Commitment and Price-TAN hereby agrees to sell to Customer shall execute or cause to be executed all instruments and Customer, and Customer hereby agrees to purchase from TAN, the do or cause to be done all acts that TAN,acting reasonably, requires Third Party Products listed in the Third Party Products Table in the to effect,perfect,register or record such charges/security interests.In volumes and at the prices described therein, subject to these Terms the event of default in payment or other breach by Customer, TAN and Conditions. shall, in addition to all other rights afforded by law, have all of the 2.2. Delivery — TAN will ship all or any part of the Third Party rights and remedies of a secured creditor under the Personal Products to the Customer as soon as reasonably possible (or, if the Property Security Act of the jurisdiction in which the Third Party below-described purchase order documentation does not seek Products is situate or Article Nine of the Uniform Commercial Code, immediate shipping,at the time TAN considers reasonable in order to as applicable. meet the desired delivery date described) after receipt by TAN, and 3. CHARGES AND PAYMENTS acceptance of the terms thereof by TAN,of a purchase order from the 3.1. Prices The pricing applicable to Third Party Products is as set Customer specifying the particular Third Party Products sought, the out on the Cover Page,as modified under this Agreement. number of such Third Party Products sought, the price payable 3.2. Pricing Variability—The Customer acknowledges that: therefore, and the desired date and location of delivery. Any such purchase order must,at a minimum,include a page, in the form of the a) the prices described in the Third Party Products Table are Cover Page, modified to indicate the information described above applicable for six (6) months after the date of execution hereof, relating to the particular shipment,executed by the Customer. In any and case,all shipments are F.O.B.Shipping Point. b) such prices are based upon the Customer taking delivery of the 2.3. Changes by Customer to Delivery Schedule—Following delivery full number of any particular Third Party Product listed in the by the Customer of any purchase order documentation described in Third Party Products Table in a single shipment and the section 2.2, no changes by the Customer to the shipment schedule Customer hereby agrees that after the expiry of such initial six- described therein will be permitted unless TAN is notified thereof in month period,or in case of the Customer seeking,in a particular writing at least ninety(90)days in advance of the delivery date sought shipment, delivery of less than all of the Third Party Products of in such purchase order documentation. a particular type listed on the Third Party Products Table, the 2.4. Acceptance of Purchase Orders—Purchase orders delivered by actual prices may be higher. Prior to shipment of any Third the Customer to TAN pursuant to are not binding upon TAN until Party Products which would be subject to pricing which differs The Active Network, Inc. Page 3 of 5 active NETWORK Terms and Conditions of Third Party Product Purchase Agreement from that described on in the Third Party Products Table, TAN 5. SERVICES will notify the Customer of any such different pricing and the 5.1. Despite any other provision of this Agreement, TAN is not Customer will accept such different pricing, as mutually agreed required to provide any services whatsoever under this Agreement. between the Customer and TAN,in writing. The Third Party Products are eligible for services to be provided by 3.3. Taxes and Other Charges—The Customer will pay all shipping& TAN under separate agreement with TAN, should the Customer wish handling costs and all applicable sales, use, withholding and excise to acquire such services. taxes,and any other assessments against the Customer in the nature 6. WARRANTY of taxes, duties or charges however designated on the Third Party 6.1. Warranty—TAN warrants to the Customer that TAN has the right Products, on or resulting from this Agreement, exclusive of taxes to deliver the Third Party Products subject to any documentation based on the net income of TAN. accompanying such Third Party Products at the time of delivery 3.4. Currency — All prices shown or otherwise referred to in or in and/or any licensing mechanisms, physical, electronic or otherwise, connection with this Agreement are in the currency of the country in included in any Third Party Products that are software. which the Customer is located as described on the Cover Page. 6.2. Warranties Provided by Third Party Suppliers - Third Party 3.5. Invoices-TAN will invoice the Customer for applicable amounts Products are warranted by the manufacturers thereof in accordance upon shipment of any Third Party Products. All invoices are payable with the warranty statements accompanying delivery of the Third within 30 days of receipt thereof, and such receipt is deemed to occur Party Products, and the Customer agrees that the Customer will rely as though such invoices were notices sent pursuant to section 9.3 of solely on such Third Party Product warranties and the Customer shall the Terms and Conditions unless such invoices physically accompany make no claim against TAN on account of any warranty, express or the shipped Third Party Products in which case receipt is deemed to implied,which may apply to any Third Party Product. occur upon the date of actual delivery of such shipment to the 7EXCLUSION OF WARRANTIES AND LIMITATION OF Customer. Overdue invoices will bear interest at 1% per month, LIABILITY 12.68%per annum. 7.1. SPECIFIC EXCLUSION OF OTHER WARRANTIES - THE 4. PROPRIETARY RIGHTS WARRANTY SET OUT IN SECTION 6.1, AND THE 4.1. Third Party Proprietary Rights and Indemnity by Customer-The MANUFACTURERS' WARRANTIES, DOCUMENTATION FOR Customer acknowledges that any Third Party Products supplied by WHICH ACCOMPANIES THE THIRD PARTY PRODUCTS AS TAN hereunder are supplied by TAN as a reseller thereof, and that DESCRIBED IN 6.2 ARE IN LIEU OF ALL OTHER WARRANTIES, the Third Party Products are subject to the intellectual property rights AND THERE ARE NO OTHER WARRANTIES, of the various third party developers and/or manufacturers thereof,as REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY applicable, including without limitation copyright, trade secret, KIND WHATSOEVER APPLICABLE, EITHER EXPRESS OR trademark and patent rights. The Customer will maintain in IMPLIED BY LAW (IN CONTRACT OR TORT) OR CUSTOM, confidence and not use or disclose any and all confidential business INCLUDING, BUT NOT LIMITED TO THOSE REGARDING or technical information connected with any Third Party Product MERCHANTABILITY, FITNESS FOR PURPOSE, DURABILITY, except as specifically permitted by a party which has legal control of CORRESPONDENCE TO SAMPLE, TITLE, DESIGN, CONDITION, those rights, and the Customer will defend or settle any claim made OR QUALITY. WITHOUT LIMITING THE ABOVE, TAN DOES NOT or any suit or proceeding brought against TAN insofar as such claim, WARRANT THAT ANY THIRD PARTY PRODUCT PROVIDED suit or proceeding is based on an allegation that any Third Party HEREUNDER WILL MEET THE REQUIREMENTS OF CUSTOMER Product provided to the Customer hereunder has been installed,used OR THAT THE OPERATION THEREOF WILL BE FREE FROM or otherwise treated by the Customer or any client or customer of the INTERRUPTION OR ERRORS. Customer in violation of the proprietary rights of any third party,or on 7.2. NO INDIRECT DAMAGES — WITHOUT LIMITING THE an allegation that the Customer or any client or customer of the GENERALITY OF SECTIONS 7.1, 7.3 OR 7.4, IN NO EVENT WILL Customer has disclosed or used any confidential business or TAN BE LIABLE TO THE CUSTOMER OR TO ANY OTHER PARTY technical information connected with any Third Party Product, FOR INDIRECT DAMAGES OR LOSSES (IN CONTRACT OR provided that TAN will notify the Customer in writing promptly after TORT)(EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF the claim, suit or proceeding is known to TAN and will give the SUCH DAMAGES) INCLUDING BUT NOT LIMITED TO DAMAGES Customer information and such assistance as is reasonable in the FOR LOST PROFITS, LOST SAVINGS, OR INCIDENTAL, circumstances. The Customer will have sole authority to defend or CONSEQUENTIAL,OR SPECIAL DAMAGES. settle any such claim at the Customer's expense. The Customer will 7.3. LIMITS ON LIABILITY—DESPITE ANY OTHER PROVISION OF indemnify and hold TAN harmless from and against any and all such THIS AGREEMENT, IF, FOR ANY REASON, TAN BECOMES claims and will pay all damages and costs finally agreed to be paid in LIABLE TO THE CUSTOMER OR ANY OTHER PARTY FOR settlement of such claim,suit or proceeding. DIRECT OR ANY OTHER DAMAGES FOR ANY CAUSE 4.2. Third Party Products which are Software - The Customer WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION acknowledges that the possession, installation and use of all Third (IN CONTRACT OR TORT), THEN TAN'S ENTIRE LIABILITY AND Party Products which are software shall be governed by the terms of THE CUSTOMER'S EXCLUSIVE REMEDY WILL BE, AT TAN'S the software license(s) of the persons other than TAN who possess OPTION,TO REPAIR,PROVIDE AN EQUIVALENT REPLACEMENT the rights to control such possession,installation and use. FOR OR REFUND THE PURCHASE PRICE OF ANY THIRD PARTY PRODUCT WHICH HAS CAUSED THE DAMAGES RESULTING IN The Active Network, Inc. Page 4 of 5 active NETWORK Terms and Conditions of Third Party Product Purchase Agreement SUCH LIABILITY OF TAN WHICH THIRD PARTY PRODUCT IS 9. GENERAL RETURNED, SHIPPING COSTS PREPAID, PROPERLY 9.1. Complete Agreement - This Agreement including all additional PACKAGED WITH THE DULY AUTHORIZED TAN RETURN purchase order documentation provided by the Customer to TAN and PERMIT, TO TAN'S DESIGNATED OFFICE DURING THE THIRD accepted by TAN according to this Agreement constitutes the PARTY WARRANTY PERIOD. complete and exclusive statement of the agreement between TAN 7.4. THIRD PARTY PRODUCTS MODIFICATION — ANY THIRD and the Customer relating to the subject matter hereof, and PARTY WARRANTY OBLIGATIONS OR ANY TAN WARRANTY supersedes all oral or written proposals, prior agreements and other OBLIGATIONS HEREUNDER WILL BE VOID IN THE EVENT prior communications between the parties, concerning that subject CUSTOMER MODIFIES THE THIRD PARTY PRODUCT IN matter. QUESTION OR USES ANY ATTACHMENT, FEATURE, OR DEVICE 9.2. Force Majeure-Dates or times by which either party is required WHICH IS NOT SPECIFIED AS AN APPROVED ATTACHMENT IN to perform under this Agreement, excepting the payment of any fees THE RELATED DOCUMENTATION FOR THE THIRD PARTY or charges due hereunder, will be postponed automatically to the PRODUCT WITHOUT FIRST OBTAINING TAN'S WRITTEN extent that any party is prevented from meeting them by causes APPROVAL. (other than inability to pay)beyond its reasonable control. 7.5. SEPARATE ENFORCEABILITY - SECTIONS 7.1 THROUGH 9.3. Notices - All notices and requests in connection with this 7.4 ARE TO BE CONSTRUED AS SEPARATE PROVISIONS AND Agreement will be given to the respective parties in writing and will be WILL EACH BE INDIVIDUALLY ENFORCEABLE. deemed given as of the first business day of the notified party 8. TERMINATION following the day the notice is faxed or sent via overnight courier, 8.1. Termination-This Agreement will terminate: providing a hard copy acknowledgment of such successful faxed a) at the option of either party if the other party materially defaults notice transmission or evidence of such couriering, as applicable, is in the performance or observance of any of its obligations retained. Notice may also be deposited in the US or Canadian mails hereunder and fails to remedy the default within 30 days after (or if the Customer is resident outside US or Canada and is rendering receiving written notice thereof and the notice, in the mails of that country), postage pre-paid, certified or b) without limiting a),at the option of TAN if the Customer breaches registered, return receipt requested, and addressed to the parties as section 3 of this Agreement,including without limitation by failure indicated on the face of this Agreement and receipt of any such notice to pay any invoice within 30 days of receipt thereof provided that will be deemed to be effective as of the third business day following the right of termination will be in addition to all other rights and such deposit. remedies available to the parties for breach or default by the 9.4. Governing Law - This Agreement and performance hereunder other. will be govemed by the laws of the jurisdiction provided in the c) notwithstanding any other provision hereof, Customer may address of the Customer on the Cover Page excepting in the case of terminate this Agreement at any time upon thirty(30) days prior Louisiana when the laws of California will apply, or in the case of written notice to TAN. In the event this Agreement is so Quebec when the laws of Ontario will apply. terminated, TAN shall be paid for services actually performed, 9.5. Non-Assignability - This Agreement is not assignable by the and reimbursable expenses actually incurred prior to termination, Customer. Any assignment, purported assignment or attempt to except that reimbursement shall not in any event exceed the assign by the Customer will be a material breach of this Agreement total amount set forth under the Third party Products Table of and will be void. this Agreement ($7662.00). Additionally, in the event this 9.6. Survival — Sections 4, 7 and 9 of this Agreement will survive Agreement is so terminated, TAN shall immediately cease the termination and expiration of this Agreement. expenditure of any funds paid to TAN by Customer and shall refund to Customer any unearned or unexpended funds. 8.2. Suspension of Obligations - If either party should default in the performance or observance of any of its obligations hereunder, then, in addition to all other rights and remedies available to the non- defaulting party, the non-defaulting party may suspend performance and observance of any or all its obligations under this Agreement, without liability, until the other party's default is remedied, but this section will not permit the Customer to suspend its obligation to make payments owing in respect of Third Party Products already brought into stock by TAN on account of the Customer having provided TAN with purchase order documentation in relation thereto. In the event this Agreement is terminated by TAN due to a default by Customer, then any license granted to Customer with respect to any Third Party Product shall terminate if full payment for such license is not delivered to TAN within 30 days from the date of termination. The Active Network, Inc. Page 5 of 5 acta eNETWORK Hosted Global Services Agreement This Hosted Global Services Agreement("Agreement") is made effective as of March 9`h, 2007 and entered into between The Active Network, Inc., a Delaware corporation, ("Active"or"we"or"us") and The City of Elain ("you"or"your" or "Agency"). Active agrees to provide you the Services(as defined below)subject to the following terms and conditions: 1. Services. We will provide you with access to a fully-hosted version of Active's hosted product, "the Product",through our website.To assist us in the successful implementation and promotion of the Services,you agree to provide us with certain information requested by us relating to your organization.The Services and the functionalities and features of the Product and related consulting fees are more specifically described in Exhibit 1 attached hereto and made a part hereof. 2. License to Intellectual Property/Promotion. a) Active shall retain all right, title and interest in and to the Product and its software,trademarks, service marks, logo and trade names worldwide ("Intellectual Property") subject to a limited license necessary to perform this Agreement. You shall use the Intellectual Property only as provided,and shall not alter the Intellectual Property in any way,or act or permit action in any way that would impair Active's rights in its Intellectual Property. You acknowledge that your use of the Intellectual Property shall not create in you or any other person any right, title or interest in or to such Intellectual Property. Any goodwill accruing from the use of the Intellectual Property shall inure solely to the benefit of Active. b) Active hereby grants to you a limited, non-exclusive, non-transferable license (i) to use the Product in accordance with Active's specifications,and(ii)to display,reproduce,distribute and transmit in digital form Active's name and logo in connection with promotion of the Services. You hereby grant to Active a limited non-transferable license to use, display, reproduce, distribute, modify and transmit in digital or printed form information provided by you relating to your organization, including your organization's name, trademarks,service marks and logo, in connection with the implementation and promotion of the Services and the promotion of your organization. You will make reasonable efforts to promote and encourage adoption of the Services, including displaying Active's name and logo in any newsletters,printed registration forms or mailings provided by you to prospective participants. 3. Information Security. We will collect information, including names, addresses, credit card information and other information required by you, from individuals registering for your Activities through the Website. Such information shall be stored on a secure remote server. You may access this information at any time by downloading it from our servers using your private password and"login"identifier. If you are unable to access your registrants'information through the event director portion of the Website,upon request we will send such information to you via e-mail, fax or airmail. You will be responsible for protecting the privacy and security of any information that you retrieve from our servers and shall prevent any unauthorized or illegal use or dissemination of such information. All information collected by Active shall be jointly owned by Active and you. 4. Privacy. Each party shall comply with all applicable laws, regulations and guidelines (including each party's privacy policy) governing online privacy in fulfilling its obligations hereunder and in collecting and using personal information about users of the Website. 5. Fees. Transactions entered directly by participants through the Website will be assessed the customary service fee charged by Active to online participants ("Service Charge"), as described below. Each online participant will pay the event fee charged by Agency plus a Service Charge equal to 6.5% of the event fee plus$.50, with a minimum Service Charge of$2.00. If the event fee is between $150-$500, the Service Charge will be 3.5%plus$5.00, and for fees above$500,the Service Charge will be 2.5%plus$10.00. Credit card transactions entered by a member of the Agency on behalf of a participant and processed via Hosted Payment Server will be assessed a Service Charge equal to 3.00%,with a minimum Service Charge of$1.00. We may change the Service Charge at any time and you agree to such change unless you provide us with written objection to such change within 30 days from the date such change is first implemented. We will be responsible for collecting all event fees charged by you and all Service Charges assessed by us. All event fees, except Service Charges, are your exclusive property. Any event fees collected by us will be sent to you twice a month and Service Charges shall be retained by us. You shall guarantee and pay to Active a minimum aggregate Service Charge of$1000 per calendar quarter(the"Minimum Quarterly Service Charge"). You shall pay to Active the difference between such Minimum Quarterly Service Charge and the actual Service Charges collected by us during such quarter,which will be billed at the end of each quarter beginning from the date set forth below. Active shall not be responsible for processing or making any refunds. All credit card refunds processed will be assessed a $.10 fee charged by Active to you. Active may reimburse itself for any credit card charge backs and associated fees out of event fees collected by it. In the event such funds are not available,you agree to reimburse Active for any charge backs or refunds. 6. Consulting Fees. Consulting Fees are more specifically described in Exhibit 1. All fees set forth in this Agreement and in Exhibit 1 will be due within 30 days of invoice date. Each Fee is due on or prior to the 15`h day of the first month of the billing period. Any Fees rendered later than this deadline shall accrue interest at the annual rate of 10%. In the event of delay in paying a Fee,you shall reimburse Active for any legal fees incurred by Active in its collection efforts. Page 1 of 3 active NETWORK 7. Disclaimer of Warranty/Limitation of Liability. Active expressly disclaims any warranty that the use of its Intellectual Property or the Services will be uninterrupted or error free or that the specifications will meet your requirements. The Intellectual Property and Services are provided to you on an "AS-IS" basis without warranties of any kind,either express or implied,including without limitation warranties of merchantability or fitness for a particular purpose. Active shall not be liable for indirect,incidental,consequential,or lost profit damages. Active's total liability under this Agreement is limited to the amount of event fees retained and not distributed to you and Service Charges collected and retained hereunder. 8. Term and Termination. The term of this Agreement shall be for two (2) years from the date set forth below, with automatic renewals for one (1) year terms thereafter until either party gives written notice to terminate this Agreement no less than ninety(90)days prior to the end of a term. Either party may terminate this Agreement upon a material breach by the other party if such breach is not cured within thirty(30) days following written notice to the breaching party. Notwithstanding any other provision hereof,Agency may terminate this Agreement at any time upon thirty (30) days prior written notice to Active. In the event this Agreement is so terminated, Active shall be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that reimbursement shall not in any event exceed the total amount set forth under Exhibit 1 to this Agreement($5560.00). Additionally,in the event this Agreement is so terminated,Active shall immediately cease the expenditure of any funds paid to Active by Agency and shall refund to Agency any unearned or unexpended funds. 9. Representations and Warranties. Each party represents and warrants that it has the necessary and full right,power,authority and capability to enter into this agreement and to perform its obligations hereunder;that it owns or controls the rights granted or licensed to the other party herein;that the execution and performance of its obligations under this Agreement will not violate any known rights of any third party,any contractual commitments or any applicable federal, state and local law or regulation; and that to its knowledge the marks, logos and intellectual property licensed to the other party herein do not violate the proprietary rights of a third party. 10. Exclusivity Active will be the sole and exclusive provider of the Services for your agency for the term of this Agreement. 11. Indemnification. Each party shall indemnify and hold harmless the other party and its directors,officers,employees,affiliates and agents,against any claim, demand,cause of action,debt or proceedings(whether threatened,asserted,or filed)and all related damages, losses, liabilities,cost and expenses (including reasonable attorneys' fees), to the extent that: (i) it is based upon the indemnitor's breach of a representation, warranty or obligation hereunder; (ii) it arises out of the indemnitor's gross negligence or willful misconduct; or (iii) it is based upon the indemnitor's violation of any applicable federal, state or local law or regulation. You shall indemnify and hold harmless Active against any claim or cause of action to the extent that it is based on injury to a participant in any of your Activities. 12. Arbitration. This Agreement shall be deemed to have been made in,and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois. 13. No Authority to Bind. Neither party shall incur any obligations for or in the name of the other party, or have the authority to bind or obligate the other party. Neither party shall make,issue or authorize any statements(whether or oral or written)in contravention of the foregoing. 14. Miscellaneous. Any notices shall be in writing by fax or airmail. Neither party may assign its rights or obligations arising out of this Agreement without the other party's prior written consent,except that Active may assign this Agreement in connection with any sale of all or substantially all of its assets or any other transaction in which more than fifty percent of its voting securities are transferred. This Agreement shall be governed by the laws of the State of Illinois. This Agreement contains the entire understanding of the parties regarding the subject matter and can only be modified by a subsequent written agreement executed by both parties. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorneys'fees. Sections 2,7, 10, 11 and 13 of this Agreement shall survive any termination or expiration of this Agreement. Page 2 of 3 active NETWORK The individuals signing below represent and warrant that they have the power and authority to bind the respective entities that they represent. CITY OF ELGINBy: 01-10 41111‘. Full Legal Customer Name Authorize. Signatory Date 150 DEXTER COURT OLUFEMI FJARIN, ITY MANAGER Address ELGIN. IL 60120-5555 Facsimile The Active Network, Inc. • April 26, 2007 Authorized Signatory Date Exhibit 1 Hosted Products: Class Hosted Internet and Hosted Payment Server Consulting Services Rate per Hour Number of Total Services Hours Cost A. Pre-Project Documentation $125 B. On-Site less than 3 days(PLUS AIRFARE) B.i. Standard Consultants $185 , B.ii. Senior Consultant/Project Planner $220 B.iii. Technical Specialist $250 C. On Site 3 days or More(PLUS AIRFARE) C.i. Standard Consultants $150 32 $4,800 C.ii. Senior Consultant/Project Planner $190 C.iii. Technical Specialist $220 D. e-Consulting(REQUIRES INTERNET ACCESS ON EACH PC) D.i. Standard Consultants $100 D.ii. Senior Consultant/Project Planner $190 4 $760 D.iii. Technical Specialist $220 E. Weekend Surcharge• E.i. Standard Consultants $75 E.ii. Senior Consultant/Project Planner $75 E.iii. Technical Specialist $75 NOTE THAT RATES SHOWN INCLUDE ALL TRAVEL EXPENSES OTHER Totals 36 $5,560 THAN AIRFARE Page 3 of 3 ,(OF FC Agenda Item No. ` „// § City of Elgin 11,. ,, qlP vM N v^ April 20, 2007 ''; 44, TO: Mayor and Members of the City Council FROM: Olufemi Folarin, City Manager Rand (Reopelle, Parks & Recraf�tion Director """"` "` "' SUBJECT: Purchase of Software for the Parks and Recreation Department PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider an agreement with The Active Network for the purchase of software, hardware and support services for the Parks and Recreation Department. RECOMMENDATION It is recommended that the City Council authorize the City Manager to execute the agreement with The Active Network for the not-to-exceed amount of$124,954 for the purchase of software, hardware, consulting, and training for the Parks and Recreation Department. BACKGROUND The Parks and Recreation Department annually processes over $6,460,000 in program registration, memberships, daily fees, concession sales, ticket sales and point of sale transactions. The Department currently utilizes three different division specific software applications, one for golf, one for the Hemmens, and one for recreation programs and facilities. None of these three applications interface with the City's main financial software application, nor do they interface with one another. In addition, the application currently used for recreation programs and facilities has serious usability issues; the vendor is unresponsive to enhancement requests and the quality of vendor support has declined to a low level that questions the ability of vendor support to staff to resolve issues in a timely manner. Given these factors a decision was made to move to a single source software application that would serve all divisions of the Parks and Recreation Department and ultimately interface with the City's main financial software application. In August of 2006 Request for Proposal #06-085, Parks and Recreation Software System and Implementation Services, was issued. The RFP was sent directly to four software companies and was noticed on the City's web site and in a local paper. Only one company, The Active Network, submitted a proposal. Their proposal was very thorough and met all of the requirements of the RFP. r Purchase of Software for the Parks and Recreation Department April 20, 2007 Page 2 City staff has met with representatives of The Active Network (TAN) on four different occasions to assist with the evaluation of their proposal. One of the meetings was an all day software demonstration put on by TAN, which was attended by over thirty City staff members, representing the MIS, Finance and Parks and Recreation Departments. TAN also provided a working copy of their software, which City employees have been trying over the past several months. The Active Network currently has 37 software customers in Illinois, including large communities such as Schaumburg, Aurora, Naperville, St. Charles, Highland Park, Peoria, Bloomington, Oak Brook and Elmhurst. These communities have large recreation departments, or park districts, that have many different programs and facilities; as is also the case in Elgin. In addition, most also have on-line registration, which is another goal staff looks to achieve by changing software applications. Staff has contacted a number of these communities, including a visit to one of them, and all have provided a positive reference for TAN. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None ( INANCIAL IMPACT LiThe not-to-exceed contract agreement with The Active Network totals $124,954. Funding in the amount of$125,000 is budgeted and $125,000 is available in the Parks and Recreation Administrative Fund, account number 296-5001-761.15-07, "Computer Software" under project number 296032, to enter into the contract. , ,✓LEGAL IMPACT /V None ALTERNATIVES 1. The Council may choose to approve the agreement with The Active Network for the purchase of software, hardware and support services for $124,954. 2. The Council may choose not to approve the agreement with The Active Network for the purchase of software, hardware and support services for $124,954. Respectfully submitted for Council consideration. RR r