2014-93 Performance Evaluation Software PurchaseRESOLUTION 2014 -93
A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
NORTH PALM BEACH, FLORIDA APPROVING THE PURCHASE OF
PERFORMANCE EVALUATION SOFTWARE FROM HALOGEN
SOFTWARE, INC.; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Village Council directed Village Administration to research and review a new
employee evaluation system to effectively implement pay for performance measures throughout
the Village; and
WHEREAS, after evaluating proposals received from a number of software providers, Village
Administration recommends the purchase of the eAppraisal Public Sector software from Halogen
Software, Inc.; and
WHEREAS, the Village Council determines that the adoption of this Resolution is in the best
interests of the Village.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE
OF NORTH PALM BEACH, FLORIDA as follows:
Section 1. The foregoing recitals are ratified as true and incorporated herein.
Section 2. The Village Council hereby approves the purchase of eAppraisal Public Sector
software from Halogen Software, Inc., including 250 two -year subscription licenses,
Multirater software and initial launch services, at a total cost not to exceed $24,365.00, with funds
expended from Account No. A5005 -33190 (Human Resources — Professional Services).
The Village Council further authorizes the Village Manager to execute a Software License and
Services Agreement with Halogen Software, Inc.
Section 3. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED THIS 11TH DAY OF DECEMBER, 2014.
(Village Seal)
ATTEST:
VILLAGE CLEkk
C a�s'
MAYOR
HALOGEN'
SOFTWARE
Strateg ic Ta lent Management
SUBSCRIPTION SOFTWARE LICENSE AND SERVICES AGREEMENT
Be Brilliant:
Contract No. 09- 2014 -1211
THIS SUBSCRIPTION SOFTWARE LICENSE AND SERVICES AGREEMENT is entered into between: Halogen Software Inc., ( "Halogen ")
having a principal place of business at 495 March Road, Suite 100, Kanata, Ontario, CANADA K2K 3G1 and Village of North Palm Beach (the
"Customer "), having a principal place of business at 501 US Highway 1, North Palm Bach, FL 33408, USA and is effective as of the date this
Agreement has been signed by both parties ( "Effective Date ").
WHEREAS Halogen is a company that, among other things, has developed and is the owner of certain computer software programs;
AND WHEREAS Customer wishes to license the Software described in Appendix A and to procure the Services as described herein;
NOW THEREFORE in consideration of the mutual promises, covenants and agreements contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which is acknowledged by the parties, Customer and Halogen agree as follows:
1. SOFTWARE AND SERVICES
Customer hereby licenses and /or purchases the following Software, Documentation and /or Services at the stated quantities and prices from
Halogen, subject to the General Terms and Conditions attached hereto as Schedule A.
ANNUAL SOFTWARE LICENSE SUBSCRIPTION & PROFESSIONAL SERVICES FEE
Description
License Term
No. of Licenses
Annual Subscription Fee
Halogen eAppraisalTM and e360
Two (2) year
250
US$19,845.00
Multirater TM, (Inclusive of M &S Fees and
subscription
on- demand Hosting Services Fees)
Annual Professional Services Fee —
As above
N/A
US$1,640.00 (For Year 1 only — Not being
Continuous Advancement — Level I —
purchased for Year 2)
Halogen eAppraisalTM, e360 MultiraterTM
TOTAL ANNUAL SOFTWARE LICENSE SUBSCRIPTION & PROFESSIONAL SERVICES FEE
US$21,485.00
(EXCLUSIVE OF TAXES)
ONE -TIME PROFESSIONAL SERVICES FEE
One -Time Professional Service Description
One -Time Professional Services Fee
Initial Launch — Level I — Halogen eAppraisalTm and e360 MultiraterTM
US$2,880.00
TOTAL ONE -TIME PROFESSIONAL SERVICES FEE (EXCLUSIVE OF TAXES)
US$2,880.00
The above pricing shall apply provided that this Agreement is executed and returned by Customer prior to 5:00 p.m. (ET) on December 15, 2014.
2. PAYMENT TERMS
Customer agrees to the following payment terms with respect to Software and Services (as defined herein):
(a) Annual Software License Subscription Fee. The Annual Software License Subscription Fee is comprised of the License, M &S, and
Hosting Services Fees (if purchased). The first Annual Software License Subscription Fee for the initial licenses granted under this
Agreement is due and payable within thirty (30) days of the Effective Date; subsequent years' Annual Software License Subscription Fees
are due and payable on the anniversary of the Effective Date. Additional Annual Software License Subscription Fees applicable to any
additional licenses purchased by Customer during the Term, as defined in Section 1(a) of Schedule A to this Agreement, will be calculated
in accordance with Halogen's then - current price list (prorated to the end of the remaining annual subscription period), and are due and
payable within thirty (30) days of Customer's receipt of Halogen's invoice.
(b) Annual Professional Services Fee. The first Annual Professional Services Fee for the initial licenses granted under this Agreement is due
and payable within thirty (30) days of the Effective Date; if Customer elects to purchase the Annual Professional Services in Year 2 of this
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Agreement, the subsequent years' Annual Professional Services Fees are due and payable on the anniversary of the Effective Date.
Additional Annual Professional Services Fees applicable to any additional licenses purchased by Customer during the Term, as defined in
Section 1(a) of Schedule A to this Agreement, will be calculated in accordance with Halogen's then - current price list (prorated to the end of
the remaining annual subscription period), and are due and payable within thirty (30) days of Customer's receipt of Halogen's invoice.
(c) One -Time Professional Services Fee. The One -Time Professional Services Fee as specified in Section 1 of this Agreement, and as
further described in Appendix D, is due and payable within thirty (30) days of the Effective Date. Fees for additional Professional Services
are payable in accordance with the schedule set out in the applicable Services Agreement.
(d) Expenses. Unless otherwise specified herein or in a Services Agreement, Customer shall reimburse Halogen for all reasonable travel
and out -of- pocket expenses incurred by Halogen's representatives when traveling to perform any Services for Customer, in accordance
with Halogen's then current Travel & Expense Guidelines, available on -line at
http: / /www.halogensoftware.com /files /PDF /secure /traveI_poIicy.php (password: halogen_ travel). For clarity, Halogen acknowledges and
agrees that no travel or out -of- pocket expenses shall be incurred other than in accordance with this Agreement and /or an executed
Services Agreement.
3. PURCHASE ORDER AND INVOICING DETAILS
Customer hereby agrees either that:
(I) It has generated a purchase order ( "PO ") to cover the total of the Fees and expenses specified in the Agreement,
and the PO number is:
The PO document should be faxed to 775 - 640 -9544 or emailed to ar @halogensoftware.com to ensure proper reference on
invoices for the products and services purchased from Halogen.
OR
(II) A PO is not required to authorize payment in full to Halogen of the Fees and expenses specified herein.
Unless otherwise agreed by the parties in writing, Halogen shall send Customer's invoice to the following email address:
4. SCHEDULES /APPENDICES
The following schedules and appendices are attached to and form part of this Agreement:
Schedule A General Terms and Conditions
Appendix A Description of the Software
Appendix B M &S Services
Appendix C On- demand Hosting Services
Appendix D Professional Services
5. ENTIRE AGREEMENT
This Agreement, including its Schedules and Appendices, constitutes the entire agreement between the parties concerning the subject matter hereof
and supersedes all prior statements, representations, discussions, negotiations and agreements, both oral and written. No modification, amendment
or variation hereof shall be of effect or binding upon the parties hereto unless agreed to in writing by their authorized officers. For clarity, any pre-
printed terms and conditions on Customer's purchase order or other similar document shall be of no force or effect.
6. COUNTERPARTS
This Agreement may be executed in more than one counterpart, each of which is deemed an original and all of which together constitute one
instrument. Delivery of an executed counterpart of this Agreement by fax or e -mail transmission is deemed to be properly binding upon the
delivering party.
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7. AUTHORITY TO BIND
The undersigned individuals represent and warrant that they are expressly and duly authorized by their respective entities or agencies to execute
this Agreement and to legally bind their respective entities or agencies as set forth in this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
Halogen Software Inc. Village of North Palm Beach
Signature: Signature:
Name:
Name:
Title:
Title:
Date:
Date:
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SCHEDULE A
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS.
(a) In these General Terms and Conditions, including the
Appendices hereto, unless the context requires otherwise, the
following words and phrases have the respective meanings set
out below:
"Affiliate" means, with respect to either party, any entity that
directly or indirectly controls, is controlled by or is under the
common control of a party for so long as such control lasts,
where "control" of an entity means the ownership of at least
fifty percent (50 %) of the voting securities of the controlled
entity.
"Agreement" means this Subscription Software License and
Services Agreement, including these General Terms and
Conditions, and the Appendices set out in Section 4 of the
Agreement, as well as any extension, renewal or amendment
signed by the parties hereto.
"Business Day" means Monday through Friday, excluding the
following holidays recognized in the Province of Ontario,
Canada: New Year's Day; Family Day; Good Friday; Victoria
Day; Canada Day; Civic Holiday; Labor Day; Thanksgiving;
Christmas Day; Boxing Day.
"Documentation" means the standard, English- language
printed and electronic versions of all documentation intended
for use with the Software, including but not limited to the
Specifications, user manuals, system administrator manuals
and other guides, but excluding training materials.
"Effective Date" means the date when both parties have
signed this Agreement.
"Error" means any material and reproducible failure of the
Software to operate and /or perform in accordance with the
Documentation.
"Fees" means the fees payable for the License, M &S Services,
Hosting Services, and Professional Services, specified in
Section 1 of the Agreement.
"Hosting Services" means, if applicable, the hosted, on-
demand services provided by Halogen for Customer's benefit
pursuant to Section 5 and Appendix C.
"M &S Services" means those maintenance and support
services provided by Halogen pursuant to Section 3 and
Appendix B.
"Professional Services" means the services provided by
Halogen pursuant to Section 4 and Appendix D, namely the
One -Time Professional Services and the Annual Professional
Services, as well as any services that Halogen may agree to
provide pursuant to a Services Agreement.
"Review" means, if applicable, an evaluation document created
for an employee or contractor of Customer using the Software.
"Services" means those services provided by Halogen as
described in this Agreement and /or in a Services Agreement,
inclusive of M &S Services, Hosting Services and Professional
Services, as applicable.
"Services Agreement" means a mutually agreed upon
executed document which describes the Professional Services.
"Software" means the version of the Halogen software program
identified in Section 1 of the Agreement and described in
Appendix A in object code format, and any releases,
derivatives, improvements, translations, adaptations,
alterations, revisions, extensions, changes, enhancements or
modifications.
"Specifications" means the technical specifications for the
Software identified and set out in the Documentation.
"Term" means the initial subscription term and any annual
renewal term, as described in Section 7(a) of this Schedule A.
"Update" means a fix, patch or such other minor improvement,
enhancement, modification or expansion of the Software
(typically denoted by an increment to the Software's number
immediately to the right of the decimal point, i.e. 12. 1, and 12.2)
as well as major revisions to and new versions of the Software
(typically denoted by an increment to the Software's number to
the left of the decimal point, i.e. 12.0 and 13.0), which are
generally commercially distributed by Halogen as part of the
M &S Services and for which Halogen does not impose a
separate charge or license separately.
2. GRANT OF LICENSE
(a) General Grant. During the Term, except as otherwise specified
herein, Customer is hereby granted a non - transferable, non -
assignable, non - exclusive, internal license, without right to
sublicense, to use the number of licenses to the Software and
Documentation specified in Section 1 of the Agreement solely
for the purposes contemplated by and described in Appendix A,
provided however that in respect of Halogen eRecruitmentTM, if
applicable, such license use shall be limited to Customer Size
(in respect of Halogen eRecruitmentTM) and Customer Size /Job
Description Total (in respect of Halogen Job Description
Builder TM when it is not licensed with any other module)
( "License "). Notwithstanding the foregoing, Customer is
hereby permitted to sublicense its right to use the Software and
Documentation to its Affiliates, provided that: (i) Customer
provides Halogen with a minimum of ten (10) days prior written
notice of such sublicense; (ii) Customer remains solely
responsible for the actions and /or inactions of such Affiliates;
and (iii) the combined total of all Licenses does not exceed the
maximum number of Licenses, or in the case of Halogen
eRecruitmentTM or Halogen Job Description Builder TM (if not
licensed with any other module), if applicable, Customer Size
(in respect of Halogen eRecruitmentTM) and Customer Size /Job
Description Total (in respect of Halogen Job Description
Builder TM if not licensed with any other module), specified in
Section 1 of the Agreement.
(b) Restrictions. Customer shall use the Software and
Documentation solely for its internal business operations.
Except as expressly authorized by this Agreement, Customer
shall not, without Halogen's prior written consent: (i) use, copy,
modify, adapt, improve, maintain, license, sublicense, lease,
sell, rent, export, or grant other rights in and to the Software; (ii)
transfer this Agreement or any license to use the Software in
whole or in part; (iii) except as permitted by law, translate,
reverse engineer, modify, adapt, create derivative works,
decompile, merge, separate, disassemble or convert into
human readable form or into another computer language, all or
any part of the Software; (iv) remove any copyright, patent,
trademark, design right, trade secret, or any other proprietary
rights legends from the Software; or (v) disclose the results of
any benchmark test of the Software to any third party. Customer
is responsible for all activities conducted under its user logins
and for its users' compliance with this Agreement. While using
the Software and Documentation, Customer shall not: (i) send
or store infringing or unlawful material; (ii) send or store
malicious code; (iii) attempt to gain unauthorized access to, or
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disrupt the integrity or performance of, the Software or the data
contained therein; (iv) permit access to the Software by a direct
competitor of Halogen; or (v) use the Software to provide any
service to a third party.
(c) Copies. If Customer's deployment is on- premise, Customer may
make a reasonable number of copies of the Software for back-
up or archival purposes. Notwithstanding the foregoing, absent
Halogen's prior written permission, Customer is not authorized
to install more than one instance of the Software. Customer
may also make copies of the Documentation for use at
Customer's premises as necessary to assist Customer in using
the Software. Customer shall reproduce all confidentiality and
proprietary notices upon such copies of the Software and
Documentation.
(d) Reserved Rights. Any rights not expressly granted herein shall
be reserved for Halogen. Rights in and to the source code as
well as rights in and to other information pertaining to the logic,
design or structure of the Software are specifically excluded
from the License.
3. MAINTENANCE & SUPPORT SERVICES
Halogen shall provide the M &S Services as described in Appendix B.
4. PROFESSIONAL SERVICES
Customer acknowledges and agrees that it must purchase One -Time
Professional Services and Annual Professional Services in
conjunction with the License. Upon request, Halogen may provide
additional Professional Services, including, but not limited to training,
consulting, database or data migration services. In support thereof
and in accordance with the provisions of Appendix D, Halogen shall
provide the Professional Services specified in Section 1 of the
Agreement and such further Professional Services as may be
specified from time to time in a Services Agreement.
5. HOSTING SERVICES
If purchased by Customer under the Agreement, Halogen shall
provide Hosting Services during the Term: (i) in support of the
number of Licenses, and /or Customer Size, if applicable, specified in
Section 1 of the Agreement; and, (ii) in accordance with Appendix C.
Unless otherwise agreed by the parties, the Hosting Services shall
be provided in respect of one (1) hosted site only.
6. PAYMENTS
(a) Fees and Expenses. Customer shall pay to Halogen the Fees
and other expenses, as applicable, set out in Section 1 of the
Agreement. Following the initial subscription term (as identified
in Section 1 of this Agreement), Halogen reserves the right to
increase the Annual Software License Subscription Fee and
Annual Professional Services Fee as set out in Section 1 of the
Agreement upon renewal upon not less than thirty (30) days
notice.
(b) No License Rights /Suspension. Customer acknowledges that
Customer has no rights under this Agreement in respect of any
undisputed unpaid Licenses and Professional Services.
Halogen reserves the right to suspend the performance of any
or all of its obligations hereunder upon not less than thirty (30)
days prior written notice if undisputed amounts are unpaid when
due and remain unpaid at the end of such notice period.
Specifically, if Customer's deployment is on- demand, if
Customer does not pay its annual Hosting Services Fee in a
timely manner (which Fee is part of Customer's Annual
Software License Subscription Fee), Halogen may terminate
Customer's hosted access in accordance with Section 6 of
Appendix C (Termination of Hosting Services).
(c) Disputes. If Customer disputes the correctness of any part of
Halogen's invoiced Fees or expenses, Customer shall advise
Halogen within thirty (30) days from Customer's receipt of the
applicable invoice, failing which such invoice must be paid in full
in accordance with the terms of this Agreement. Nothing in this
clause allows Customer to delay payment of any part of the
applicable invoice that is not in dispute.
(d) Taxes. Customer shall provide Halogen with a tax exempt
certificate, failing which, Customer shall pay all applicable
duties, taxes or amounts due in lieu thereof owed by Customer,
related in any way to this Agreement, exclusive only of taxes
based on Halogen's net income.
(e) Shipment. Unless otherwise agreed by the parties in writing,
Halogen shall deliver the Software and Documentation
electronically. If a physical shipment is required, it shall be FOB
shipping point. Responsibility and title in the Software (to the
extent that any title is transferred under this Agreement) shall
pass to Customer as follows: (i) if physically shipped, once the
Software is delivered to Halogen's commercial carrier; (ii) if
electronically shipped absent any Hosting Services from
Halogen, once Halogen delivers to Customer the applicable
downloadable license file, or (iii) if electronically shipped to
Customer for use in Halogen's hosted on- demand hosting
environment, once the Software is made available to Customer.
The Software shall be deemed accepted upon delivery.
(f) Currency. Unless otherwise indicated, all prices quoted in this
Agreement are in United States of America Dollars ( "USD "), and
payments to Halogen pursuant to this Agreement are to be
made in USD.
(g) Money Back Guarantee. All Software licensed by Halogen
under the terms of this Agreement (other than additional
licenses for a previously licensed module) and the Annual
Professional Services component of the Customer's
Professional Services entitlement shall be subject to a money
back guarantee, commencing upon the Effective Date of this
Agreement (or the applicable Addendum) and continuing for a
period of one hundred and eighty (180) days (the "MBG
Period "). At any time during the MBG Period, subject to the
below listed conditions but otherwise at Customer's sole
discretion, Customer may elect to terminate this Agreement
(either in whole or in part, in respect of only select module(s))
and obtain a pro -rata refund of the first year's Annual Software
License Subscription Fee and the first year's Annual
Professional Services Fee for the module(s) being returned,
calculated from the date Halogen receives Customer's notice to
the end of the first year's subscription term. In such event,
notwithstanding anything in this Agreement or the applicable
Addendum to the contrary, Customer shall not be required to
pay Halogen the subsequent years' Annual Software License
Subscription Fee (if any) and /or the subsequent years' Annual
Professional Services Fee (if any) in respect of such module(s).
The money back guarantee described above is subject to the
following conditions:
(i) Customer must have booked and fully received one
of Halogen's assisted implementation services
programs for the module(s) being returned. For
clarity, Customer's refund entitlement does not
include the One -Time Professional Services Fee
paid or payable in respect of such services program;
and,
(ii) Customer's notice must be sent to
contracts(cbhalogensoftware.com with a hard copy by
regular mail to the address noted above, Attention:
Finance Department.
(h) Late Payment. All undisputed past due payments shall incur a
late fee of two percent (2 %) monthly and twenty -four percent
(24 %) annually, or the highest amount permissible at law,
whichever is less.
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7.
TERM AND TERMINATION
not sold. All right, title and interest in and to the Software and
Documentation, including all patents, copyrights, trademarks,
(a)
Term. This Agreement shall be effective on the Effective Date
mask works, circuit layout rights, design rights, trade secrets
and shall, unless earlier terminated as provided herein,
and other proprietary and intellectual property rights in or
continue for the initial subscription term (as identified in Section
related to the Software and Documentation, along with all
1 on Page 1 of this Agreement). Following the initial
enhancements, modifications, translations and derivative works
subscription term, the provisions of this Agreement shall
of the Software or Documentation, belong to Halogen or its
automatically renew at Halogen's then - current rates for
licensors, whether or not specifically recognized or perfected
subsequent one year terms, unless either party provides written
under the laws of the country where the Software and /or
notice of its intention not to renew this Agreement at least thirty
Documentation is located.
(30) days prior to the end of the then - current subscription term.
(b)
Feedback. Halogen shall have a royalty -free, fully paid -up,
(b)
Termination. This Agreement shall terminate on the earlier of: (i)
nonexclusive, perpetual, irrevocable, worldwide, transferable
termination of the Term, where notice of non - renewal is timely
(only to a successor in interest by way of merger, reorganization
provided by one party to the other in accordance with Section
or sale of all or substantially all assets or equity), sublicensable
7(a) above; (ii) on a day that is thirty (30) days after one party
license to use, copy, modify, or distribute, including by
gives the other written notice of breach by the other of any
incorporating into the Software, any suggestions,
material term or condition of this Agreement, unless the breach
recommendations or other feedback provided by Customer or
is remedied before that day to the satisfaction of the notifying
its users relating to the operation of the Software.
party; (iii) upon written notice of termination by one party,
effective immediately, if the other party is or becomes insolvent
(c)
No Additional Rights. Nothing in this Agreement shall be
or bankrupt or ceases paying its debts as they mature, or
construed as increasing the number of copies licensed to
makes or files an assignment in bankruptcy or otherwise
Customer or the number of permitted users or licenses, or
acknowledges its insolvency, or a trustee, receiver, liquidator or
providing Customer with additional Halogen products or
similar official is appointed for the other party or any substantial
services.
portion of its property and assets, or bankruptcy, insolvency,
arrangement or similar proceedings are instituted by or against
9.
CONFIDENTIALITY
the other party; (iv) upon written notice of termination by either
party, effective immediately, if the circumstances of Force
(a)
Definition. The parties acknowledge that one party ( "Receiving
Majeure described in Section 18(d) are continuing and have
Party ") may receive confidential and /or proprietary information
continued for a period of at least sixty (60) consecutive days; or
relating to the other party ( "Disclosing Party ") or its licensors
(v) upon written notice of termination by Halogen if Customer
or customers ( "Confidential Information "). The parties shall
fails to pay any or all undisputed Fees or other amounts due
only use such Confidential Information in the performance of
hereunder within fifteen (15) days of receipt of such notice.
this Agreement and shall not disclose any such Confidential
Information to any other party unless authorized by the
(c)
Effect of Termination. Upon any termination of this Agreement,
Disclosing Party in writing. Halogen Confidential Information
and unless otherwise provided herein: (i) if termination is due to
shall be deemed to include, regardless of marking, the
Customer's unremedied material breach or its bankruptcy or
Software, the Documentation, any unannounced product(s) or
insolvency (as each are described in Section 7(b)) or due to
service(s) of Halogen, and the terms, conditions and subject
Force Majeure (as defined in Section 18(d)), all payments that
matter of this Agreement and any related contractual
would otherwise have been payable for Software received or
documents. If Customer's deployment is on- demand, Customer
Services performed hereunder during the Term (to the extent
Confidential Information shall be deemed to include, regardless
not already paid by Customer) shall become due immediately;
of marking, all Customer data, files and records stored on any
(ii) if termination is due to Halogen's unremedied material
equipment used by Halogen to provide the Hosting Services.
breach or its bankruptcy or insolvency (as each is described in
As soon as practicable, Receiving Party shall notify Disclosing
Section 7(b)), any prepayment made by Customer to Halogen
Party of any breach of this Section 9 of the Agreement.
for Software received or Services that would otherwise have
been performed after the termination date shall be refunded to
(b)
Restrictions. Receiving Party shall not transmit, maintain,
Customer; (iii) subject to paragraph (e), Customer shall
remanufacture or duplicate all or any part of, the Confidential
immediately cease using the Software and, shall return to
Information except in accordance with the terms and conditions
Halogen or destroy all copies of the Software and
of this Agreement. Receiving Party shall be directly liable for the
Documentation, and certify to Halogen in writing that Customer
acts or omissions of its employees or contractors with respect to
has complied with its termination obligations hereunder; and (iv)
such confidentiality obligations. Receiving Party agrees to
each party shall return to the other, or destroy all Confidential
protect the Confidential Information with at least the same
Information of the other party in its possession or under its
degree of care it uses to protect its own trade secrets and
control, and provide certification of destruction of same upon
proprietary information but no less than reasonable care.
request. Notwithstanding the foregoing, Customer may retain
one or more copies of this Agreement for its files.
(c)
Exclusions. The foregoing confidentiality obligations shall not
apply to Confidential Information which: (i) at the time of
(d)
Services Termination. Should either party terminate any Hosting
disclosure is within the public domain, other than through a
Services or Annual Professional Services (as expressly
breach of this Agreement by the Receiving Party; (ii) after
provided herein), the provisions of this Agreement which are
disclosure becomes readily and lawfully available to the industry
applicable to the services or obligations so terminated shall be
or the public, other than through a breach of this Agreement by
deemed terminated and the provisions of Section 7(c) shall
the Receiving Party; (iii) Receiving Party can establish, by
apply, as applicable. Termination of such Services shall not
documented and competent evidence, was in its possession
result in the termination of any valid licenses to the Software,
prior to the date of disclosure by Disclosing Party; (iv) Receiving
which shall otherwise remain in full force or effect as provided
Party can establish, by documented and competent evidence,
herein.
was independently developed by the Receiving Party without
use or reliance upon the Confidential Information; or (v) is
(e)
Survival. Sections 2, 6(c), 7(c), 8 to 10 and 12 to 18 shall
approved for disclosure, in advance, in writing by Disclosing
survive the termination or expiration of this Agreement.
Party.
8.
OWNERSHIP
(d)
Compelled Disclosure. In the event that the Receiving Party is
requested pursuant to legal process to disclose any
(a)
General Proprietary Rights. The Software and Documentation
Confidential Information of the Disclosing Party, the Receiving
and the media on which they are provided (if any) are licensed,
Party shall provide the Disclosing Party with notice to such
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effect, and at the request of the Disclosing Party shall co-
operate with the Disclosing Party at no cost to the Receiving
Party in seeking relief against the disclosure of such
Confidential Information. In the event that through legal process (b)
the Receiving Party is obligated to disclose any Confidential
Information, the Receiving Party may do so without breaching
the terms of this Agreement, provided that the Receiving Party
furnishes only that portion of the Confidential Information that it
is legally required to furnish.
(e) Equitable Remedies. Receiving Party acknowledges that
disclosure or use of the Confidential Information contrary to this
Agreement may cause the Disclosing Party irreparable harm for (c)
which damages would not be an adequate remedy and further
acknowledges that, in addition to any other remedies that may
be available at law, the Disclosing Party may apply for all
available equitable relief including injunctive relief.
10. PERSONAL INFORMATION
Halogen acknowledges that, in the course of fulfilling its obligations
under this Agreement, it may have or be given access to information
about an identifiable individual which is personal information,
personal data and /or sensitive personal data (as defined in the
applicable privacy or data protection legislation, if any) ( "Personal
Information "). Halogen shall comply with all applicable laws
governing the use, disclosure and access of such Personal
Information, including but not limited to, any and all requirements to
protect such information from loss or unauthorized access as
required by the Personal Information Protection and Electronic
Documents Act (PIPEDA) where applicable. Without limiting the
generality of the foregoing, Halogen agrees that Personal
Information shall be considered and treated as Confidential
Information and shall therefore be subject to the provisions of
Section 9.
11. WARRANTIES
Documentation, and that the provision of this infrastructure is
not part of this Agreement.
Services Warranty. Halogen warrants that the Services to be
provided hereunder shall be performed with reasonable care
and skill by an individual trained in and competent with the
Software and in a professional manner. Halogen's sole
responsibility and Customer's sole remedy with respect to
deficient or non - conforming Services is to use commercially
reasonable efforts to re- perform such services in accordance
with the terms and conditions of this Agreement.
General. Halogen represents and warrants that it has all right,
power, and authority to enter into this Agreement and to provide
the Software and Services described in the Agreement and that
nothing in this Agreement or Halogen's performance consistent
therewith will violate any agreement or obligation that Halogen
has to a third party.
(d) Disclaimer. THE WARRANTIES IN THIS SECTION 11 ARE
THE ONLY WARRANTIES EXPRESSLY GIVEN BY HALOGEN
WITH RESPECT TO THE SOFTWARE, DOCUMENTATION
AND THE SERVICES. TO THE EXTENT PERMITTED BY
LAW, HALOGEN EXCLUDES ALL OTHER WARRANTIES
AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING
THOSE CONCERNING MERCHANTABILITY,
SATISFACTORY QUALITY AND FITNESS FOR A
PARTICULAR PURPOSE. HALOGEN DOES NOT MAKE ANY
WARRANTIES THAT THE SOFTWARE AND THE
OPERATION THEREOF WILL BE UNINTERRUPTED,
ERROR -FREE OR SECURE.
(e) No Authorization. No Halogen agent, representative or dealer is
authorized to modify, extend or add to any warranty on behalf of
Halogen.
ifs#
(a) Software Warranty. Halogen warrants that during the period (a)
beginning on the Effective Date and continuing for ninety (90)
days thereafter ( "Warranty Period "): (i) the Software shall
conform substantially to the Specifications set out in the
Documentation ( "Software Warranty "); and (ii) if applicable, the
media upon which the Software is provided shall be free from
defects in materials and workmanship ( "Media Warranty ").
Customer's sole remedy and Halogen's sole obligation with
respect to a breach of the foregoing warranties is as follows: (i)
in respect of the Media Warranty, provided that the media is
returned to Halogen within the Warranty Period, Halogen shall
provide Customer with replacement media; and, (ii) in respect of
the Software Warranty, provided that Halogen is notified in
writing of the non - conformance during the Warranty Period,
Halogen shall, at its sole option, use commercially reasonable
efforts to correct significant defects in the Software or provide a
workaround thereto, without charge to Customer, failing which,
Halogen shall refund to Customer an amount equivalent to, but
no greater than, the Annual Software License Subscription Fee
paid in respect thereof.
The above warranties shall not apply to: (a) any Software that is
modified without Halogen's written consent; or (b) any Software
which has been misused, altered, repaired or used with
equipment or software not expressly approved by Halogen.
Halogen shall have no responsibility for claims arising from: (i)
modifications of the Software made by Customer if such claim
would not have arisen but for such modifications, or (ii)
combination or use of the Software with any other products, if
such claim would not have arisen but for such combination or
use. Customer further acknowledges that the Software, if it is to
be installed on- premise at Customer's site and not hosted by or
on behalf of Halogen, typically requires some configuration
upon installation, that certain customary infrastructure such as
internet connectivity must be in place at Customer's site in order
for certain functionality to operate in accordance with the
101 Ill IAIIx01 t1111-F-11OU Z6]» :Avg 101111:1 kyl 10111;1 [of-A 00 01
Defence of Infringement. Halogen shall indemnify, hold
Customer harmless against and defend or settle any action
brought against Customer to the extent that it is based on a
claim that the Software provided by Halogen under this
Agreement infringes any patent or copyright of a third party
registered, pending and /or issued in Canada or the United
States of America as of the Effective Date ( "Third Party
Rights ") and shall pay the resulting costs, damages and legal
fees finally awarded against Customer, provided that: (i)
Customer notifies Halogen in writing within ten (10) days of
receiving notice of any such claim against Customer; (ii)
Halogen or its licensors have sole control of the defence,
compromise or settlement of such claim, including any appeals;
(iii) Customer reasonably cooperates with Halogen in the
defence or settlement of such claim at no charge to Customer;
and (iv) Customer makes no admissions or offers of settlement
to the third party. Halogen shall not be liable for any costs or
expenses incurred by Customer with respect to settlement of an
infringement claim without Halogen's prior written authorization.
(b) Exclusions. Halogen shall have no liability hereunder for any
claim of infringement based on: (i) use of a superseded release
of the Software if the infringement would have been avoided by
the use of a current release of the Software that has been made
available by Halogen to Customer at no additional cost to
Customer; (ii) the use of a release of the Software that has
been modified or altered by a party other than Halogen or used
not as directed by Halogen if the infringement would have been
avoided by the use of an unmodified or unaltered release of the
Software; or (iii) the combination, operation or use of the
Software with software, hardware or other materials not
furnished or recommended by Halogen if such infringement
would have been avoided without such software, hardware or
other materials.
(c) Remedies. In the event the Software, or a component part
thereof is, pursuant to a final decision by a court of competent
jurisdiction, held to infringe, or is believed by Halogen to infringe
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Page 7 of 20 Confidential
or potentially infringe, Third Party Rights, Halogen shall, in
addition to the indemnification and defence provided for in
Section 12(a), and at Halogen's option, (a) modify, at its
expense, the Software to be non - infringing, (b) obtain for
Customer a license to continue using the Software; or, if the
foregoing options are not reasonably practicable, (c) terminate
this Agreement and refund Customer all prepaid Fees for that
portion of the Term then remaining. This Section 12 shall only
apply in respect of a final decision rendered by a court of
competent jurisdiction or in respect of a settlement of an
infringement action with the prior written consent of Halogen.
(d) ENTIRE LIABILITY. THE FOREGOING STATES THE ENTIRE
LIABILITY OF HALOGEN AND THE EXCLUSIVE REMEDY OF
CUSTOMER FOR ANY INFRINGEMENT OF THIRD PARTY
RIGHTS.
13. LIMITATION OF LIABILITY
(a) LIMITATION. IN NO EVENT, UNDER NO CIRCUMSTANCES
AND UNDER NO LEGAL THEORY, TORT, CONTRACT OR
OTHERWISE, SHALL HALOGEN, ITS LICENSORS, OR ITS
AFFILIATES, OR THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES OR CONTRACTORS BE LIABLE
TO CUSTOMER FOR: (1) ANY INDIRECT, INCIDENTAL,
ORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR
EXEMPLARY DAMAGES INCLUDING WITHOUT LIMITATION
ECONOMIC LOSS, LOST PROFITS, LOSS OF USE, LOSS OF
USE OF PROFITS, REPROCUREMENT COSTS OR LOST OR
DAMAGED DATA, EVEN IF HALOGEN OR ITS AFFILIATES
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE, OR
IF SUCH DAMAGES ARISE FROM ANY
MISREPRESENTATION, BREACH OF ANY IMPLIED OR
EXPRESS WARRANTY OR CONDITION, BREACH OF ANY
OTHER TERM (INCLUDING A FUNDAMENTAL BREACH OR
BREACH OF A FUNDAMENTAL TERM) OR BREACH OF
STATUTORY DUTY; OR (11) A MAXIMUM AGGREGATE
LIABILITY IN ANY CLAIM, ACTION, DEMAND OR
PROCEEDING WHICH EXCEEDS: (A) FOR THE SOFTWARE,
THE TOTAL AMOUNT OF THE LICENSE FEE COMPONENT
OF THE ANNUAL SOFTWARE LICENSE SUBSCRIPTION
FEE ACTUALLY PAID TO HALOGEN BY CUSTOMER
DURING THE YEAR IN WHICH THE CLAIM AROSE; OR (B)
FOR ANY SERVICES PROVIDED, THE M &S OR HOSTING
SERVICES COMPONENT OF THE ANNUAL SOFTWARE
LICENSE SUBSCRIPTION FEE, OR THE ANNUAL
PROFESSIONAL SERVICES FEE, AS THE CASE MAY BE,
PAID BY CUSTOMER TO HALOGEN FOR THE SERVICES
GIVING RISE TO THE CLAIM DURING THE YEAR IN WHICH
CLAIM AROSE.
(b) Exceptions. The foregoing limitations on liability shall not apply
to: (i) claims caused by Halogen's gross negligence or wilful
misconduct to either Customer or a third party; or (ii) third party
intellectual property claims for which Halogen is required to
indemnify Customer pursuant to Section 12.
(c) Basis of Bargain. The parties acknowledge and agree that the
limited warranty, exclusive remedies and limited liability set forth
in this Agreement are fundamental elements of the basis of the
bargain between Halogen and Customer, and that Halogen
would not be able to provide the Software or Services on an
economic basis without such limitations.
(d) Limitation Period. No action, regardless of form, arising out of or
in relation to any services may be brought more than two (2)
years after the completion of the services to which the action
relates.
14. DISPUTE RESOLUTION
All matters of difference between the parties in relation to this
Agreement shall be dealt with in accordance with this Section.
Notwithstanding the foregoing, no provision hereof shall limit the right
of any party to obtain equitable relief, including without limitation,
injunctive relief, from a court of competent jurisdiction before, after or
concurrent with mediation, arbitration or other proceeding, provided
however that any proceedings which occur in accordance with this
Section and are brought by Customer shall be in its individual
capacity, and not as a class member in any purported class or
representative proceeding. The parties shall attempt to resolve any
dispute arising from or relating to this Agreement through
consultation and negotiation in good faith and a spirit of mutual
cooperation for up to fifteen (15) days commencing on the date when
one party gives written notice to the other party of any controversy or
claim. However, if those attempts fail, the dispute shall be submitted
to arbitration. The parties agree that any continuing disputes arising
from or related to this Agreement shall be decided pursuant to the
then - current Rules of the American Arbitration Association at such a
location to be mutually agreed upon by the parties. If the parties
cannot agree on a location for the arbitration within ten (10) days, the
parties agree that the arbitration will take place in New York, New
York. Unless provided otherwise in the Agreement, the arbitrators,
at least one of whom shall be knowledgeable about information -
technology agreements similar to this Agreement, may not award
non - monetary or equitable relief of any sort. They shall have no
power to award damages inconsistent with the Agreement or punitive
damages or any other damages not measured by the prevailing
party's actual damages, and the parties expressly waive their right to
obtain such damages in arbitration. In no event, even if any other
portion of these provisions is held to be invalid or unenforceable,
shall the arbitrators have power to make an award or impose a
remedy that could not be made or imposed by a court deciding the
matter in the same jurisdiction. The arbitration shall be conducted in
the English language. All aspects of the arbitration shall be treated
as confidential. Neither the parties nor the arbitrators may disclose
the existence, content or results of the arbitration, except as
necessary to comply with legal or regulatory requirements. Before
making any such disclosure, a party shall give written notice to the
other party and shall afford such party a reasonable opportunity to
protect its interests. The result of the arbitration and the reasons
therefore shall be given in writing, and will be binding on the parties,
and judgment on the arbitrators' award may be entered in any court
having jurisdiction. The parties agree that the arbitrator's award may
only be appealed on a question of law or patent unreasonableness.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ITS
RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
DEALINGS BETWEEN THE PARTIES RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT. EACH OF THE
PARTIES HERETO ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT.
IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
15. U.S. GOVERNMENT END USERS
If Customer is a federal government entity or government contractor
in the United States of America, the Software is subject to the
following restricted rights: use, duplication or disclosure by the U.S.
Government is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of The Rights in Technical Data and Computer Software
clause at DFARS 252.227 -7013, or subparagraphs (c)(1) and (2) of
the Commercial Computer Software - Restricted Rights at 48 CFR
52.227 -19, or clause 18- 52.227 -86(d) of the NASA Supplement to
the FAR, as applicable. Contractor /Manufacturer is Halogen.
16. AUDIT
Customer is responsible for monitoring its License count. If
Customer's deployment is on- premise, Customer agrees to: (i)
advise Halogen, upon request, of all locations where Software is
used or stored and to provide Halogen reasonable access to such
locations and the Software, including any copies; (ii) maintain
complete and accurate records (in accordance with generally
accepted accounting principles or IFRS, as applicable) relating to its
activities under this Agreement; and (iii) upon request, not more than
once per twelve (12) month period, certify its current use of the
Software including without limitation Customer Size and number of
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job descriptions, as applicable. Halogen may, at its expense, appoint
an independent third party to audit, no more than once annually,
Customer's use of the Software. Any such audit shall be conducted
during regular business hours at Customer's office, upon a minimum
of five (5) Business Days notice and shall not unreasonably interfere
with Customer's business activities. In lieu of the foregoing, and at
Halogen's option, Halogen may require Customer to run a license
utilization script file not more than once per twelve (12) month period
and timely provide Halogen with the results thereof in support of this
Section 16. If Customer's deployment is on- demand, Customer
acknowledges that Halogen shall have the ability to: (i) audit its use
of the Software at any time, with no prior notice to Customer; and (ii)
require Customer to certify upon request, not more than once per
twelve (12) month period, Customer's current use of the Software
including without limitation Customer Size and Job Description Total,
as applicable. In addition to other remedies available to Halogen, if
any such audit or certification shows that Customer has underpaid
the applicable Fees, Customer shall pay such underpaid Fees within
thirty (30) days of invoice. If underpaid Fees for any period are in
excess of five percent (5 %) of the value of the Fees paid for that
period under this Agreement, then Customer shall also pay
Halogen's reasonable costs of conducting the audit, if any.
17. PUBLICATION
Customer consents to publication of its name and logo by Halogen in
a factual listing of Halogen's customers within presentations, on
trade show signs and on its website. Halogen shall seek Customer's
prior written authorization for any other use of Customer's name or
logos. Provided that Customer is satisfied with the Software,
Customer agrees to consider: (i) participating in a success story for
the Software to be published on Halogen's website and (ii) acting as
a client reference for Halogen on an as- and when - needed basis.
18. GENERAL PROVISIONS
(a) Compliance with Applicable Laws. Each party shall comply with
any and all applicable laws, including, but not limited to, export
laws.
(b) Governing Law and Jurisdiction. This Agreement is governed by
and is to be construed and interpreted in accordance with the
laws of the State of New York, without regard to conflict of laws.
The parties expressly disclaim the application of the United
Nations Convention on the International Sale of Goods to this
Agreement. Subject to Section 14 above, Customer submits to
the non - exclusive jurisdiction of the courts of the State of New
York, and Halogen submits to the exclusive jurisdiction of the
courts of the State of New York.
(c) Independent Principals. The parties are and shall at all times
remain independent principals in all relationships and actions
under or contemplated by this Agreement and neither party has
the authority to bind the other or to incur any obligations on its
behalf. Neither party shall represent itself to be the agent, joint
venturer, partner or employee of the other nor shall either party
make any statements or take any steps or acts that do or could
imply or create any agency, joint venture, partnership,
employment or other business relationship between them, other
than as expressly hereby contemplated.
(d) Force Majeure. Subject to Section 7(b), neither party shall be
responsible for delays or failure of performance under this
Agreement, except for Customer's obligation to pay the Fees, to
the extent resulting from causes that are beyond the reasonable
control of such party and which render the continued
performance of this Agreement impossible, impractical or illegal,
including, but not limited to, fire, flood, explosion, tornado,
epidemic, earthquake, snowstorm, ice storm or other act of
God, embargo, explosion, malfunction, riots, civil disputes, acts
of terrorism or war, failure of the internet or government controls
or regulations ( "Force Majeure"). The existence of such
causes of such delay or failure shall extend the period for
performance to the extent necessary to enable complete
performance in the exercise of reasonable diligence after the
causes of delay or failure have been removed.
(e) Assignment and Benefit. Other than as permitted under Section
2 of this Agreement, Customer may not assign all or part of this
Agreement without Halogen's prior written consent.
Notwithstanding the foregoing, either party may assign this
Agreement in its entirety without consent of the other party to its
successor in interest in connection with a sale of all or
substantially all assets or equity not involving a direct
competitor of the other party. This Agreement shall be binding
upon and inure to the benefit of the successors and permitted
assigns of the parties.
(f) Notice. All notices, requests, demands and other
communications required or permitted under this Agreement
must be in writing and are deemed to have been duly given, if
sent by fax (receipt confirmed), on the day it is received, if
delivered in person or by courier, when delivered, if mailed by
registered or certified mail, postage paid and return receipt
requested, from within the United States or Canada, on the
fourth Business Day following the date of mailing, or if from
outside of the United States or Canada, on the tenth Business
Day, to the addresses of the parties given on the first page of
the Agreement or to such other address as a party may from
time to time specify by notice in writing to the other party.
Notices to Halogen shall be made to the attention of the Chief
Financial Officer. A notice deemed to have been received after
5 p.m. on a Business Day, or on a day which is not a Business
Day at the place of receipt, shall be deemed to have been
received at 9 a.m. on the first Business Day thereafter at the
place of receipt.
(g) Severability. The provisions of this Agreement shall be deemed
severable. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be contrary to law, the
remaining provisions of this Agreement shall remain in full force
and effect.
(h) Waiver. The waiver by either party of any default or breach of
this Agreement shall not constitute a waiver of any other or
subsequent default or breach.
(i) Language. The parties confirm that: (i) it is their wish that this
Agreement, as well as all other documents relating to this
Agreement, including notices, be drawn up in English; (ii) any
and all Services provided pursuant to this Agreement,
Appendices B, C and D to this Agreement and any applicable
Services Agreement shall be provided in English; and (iii) the
English language shall be controlling in all respects.
Q) Conflict. In the event of a conflict between this Agreement and a
Services Agreement, this Agreement shall prevail to the extent
necessary to resolve the conflict.
(k) Contracts (Rights of Third Parties) Act 1999. This Agreement is
not intended to confer rights on third parties.
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APPENDIX A
DESCRIPTION OF THE SOFTWARE
Halogen eAppraisalTM
Halogen eAppraisalTM is licensed in units of "Review Licenses ". The
number of Review Licenses limits the number of employees or
contractors of Customer that can be appraised each calendar year. A
Review License allows an employee or contractor of Customer to be
appraised with Halogen eAppraisalTm by an unlimited number of
Respondents an unlimited number of times during the calendar year.
Review Licenses are consumed whenever activity occurs, related to an
individual who is the subject of an evaluation, during the period in which
the individual is part of an open appraisal process. A single individual (for
example, an employee or contractor) will only consume a single Review
License during a calendar year period regardless of the number of
appraisal processes that are opened against that single individual.
Generally speaking, activity related to an individual listed in the
Software's User Center who is not the subject of an evaluation or
appraisal during a calendar year period will not consume a Review
License; provided however, that notwithstanding the foregoing, use of
Halogen eAppraisalTM to perform the following activities does not fall
within the foregoing exemption (i.e. Customer's performance of such
activities will consume a Review License per employee): goals
management, joumaling, talent profiling and /or development planning
outside any process. For purposes of clarity, a Review License used by
Customer to appraise an employee who subsequently leaves their
employ cannot be re -used to appraise another employee within the same
calendar year. "Respondents" means the employees or contractors of
Customer who are authorized by Customer to access the Software for
purposes of conducting a Review.
Halogen e360 MultiraterTM
Halogen e360 MultiraterTM is an optional add -on module to Halogen
eAppraisalTM. The number of units of this add-on module must be equal
to the number of units of Halogen eAppraisalTM licensed by Customer.
This module must be licensed if Customer licenses the Professional
Services version of Halogen eAppraisalTM
Features and Functionality of Halogen Software Products
The foregoing description of the Software and Software modules is
provided for information purposes only. Customer acknowledges
that the description of the Software may be subject to change, and
that the actual features and functionality of the Software may vary
from the descriptions herein.
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APPENDIX B
MAINTENANCE & SUPPORT SERVICES
DEFINITIONS
"Severity Level" means the level of severity assigned to an Error in the
Halogen Software by Halogen and Customer using the following criteria:
Severity
Description
Level
1
An Error that has a critical impact on the
development, deployment, or operational use of the
2
Software, resulting in the inability to continue to
deploy or use the Software as required or intended.
3
A Severity 1 Error does not have a reasonable
workaround, cannot reasonably be corrected by
4
adding to or changing the Documentation.
2
An Error that causes a severe restriction on the
development, deployment, or operational use of the
Software, resulting in the restricted ability to continue
to deploy or use the Software. A Severity 2 Error
does not have a reasonable workaround, cannot
reasonably be corrected by adding to or changing the
Documentation.
3
An Error that causes limitations which are not critical
or severe to the development, deployment, or
operational use of the Software. A Severity 3 Error
has a reasonable workaround.
4
An Error that causes a slight inconvenience to the
development, deployment, or operational use of the
Software. A Severity 4 Error has a reasonable
workaround.
2. MAINTENANCE & SUPPORT SERVICES
MAINTENANCE
Halogen will provide to Customer, at no additional charge, any Updates to the
Software that Halogen makes available to its clients generally. Unless
Customer is on- premise, Halogen is responsible for the installation of all
Updates. Customer acknowledges and agrees that certain Updates may be
provided without notification, including, without limitation, high priority and
necessary fixes and features, security patches and performance patches.
SUPPORT
Standard second level support is included in Halogen's M &S Services offering.
Halogen will also provide to Customer telephone or email assistance by a
qualified representative on a 7 x 24 basis to attempt to correct or bypass Errors
that have been brought to the attention of Halogen by Customer. Halogen may
provide such telephone assistance through a designee of its choice to up to
three (3) designated contacts of Customer who are trained and knowledgeable
in the use of the Software. Halogen provides emergency Support only, on the
following holidays: New Years Day; Labor Day; Christmas Day.
Halogen will make commercially reasonable efforts to solve reported Errors in
accordance with the Severity Level classifications and the response times
listed below, through system changes or suggested workarounds. If the
Halogen Services are unavailable to end users, Customer will use
commercially reasonable efforts to cooperate with Halogen in resolving any
problems.
Halogen shall provide a tiered support process to Customer, providing a
controlled escalation environment which delivers multiple levels of support as
deemed appropriate for Customers' individual issues. Response time varies
depending on the severity of the Error. Each Error is assigned a Halogen
support ticket which is either fulfilled by the Support Technician, or escalated to
the Support Manager as required.
If the support ticket requires further escalation, the assistance of other Halogen
technicians is enlisted by the Support Manager.
When reporting a suspected Error, Customer will assign the appropriate
Severity Level category, which, in Customer's reasonable judgment, accurately
describes the impact on Customer's operating environment. Halogen reserves
the right to reclassify the Error if it determines, in its reasonable judgment, that
such reclassification is appropriate. Where the parties disagree on the
classification, Halogen will review the Error with Customer to attempt to agree
on a mutually acceptable classification.
Severity Level Response Times:
Severity
Response Time
Level
1
Acknowledge within 4 (four) hours; response
within one 1 da .
2
Acknowledge within 4 (four) hours; response
within two 2 days.
3
Acknowledge within 1 (one) day; response
within seven 7 days.
4
Acknowledge within 2 (two) days; response at
the discretion of Halogen.
3. SUPPORTED RELEASES
If Customer's deployment is on- demand, M &S Services are only provided for
the Update of the Software installed by Halogen for Customer.
If Customer's deployment is on- premise, M &S Services are only provided for
the two most recent Updates made available by Halogen to Customer. For
clarity, in addition to the foregoing, M &S Services shall also be provided for
any and all fixes, patches and other minor improvements denoted by an
increment to the Software's number two places to the right of the decimal point
to which the two most recent Updates relate that are generally commercially
distributed by Halogen as part of the M &S Services and for which Halogen
does not impose a separate charge or license separately (i.e. if 11.2 and 11.3
are the two most recent Updates made available, M &S Services shall also be
provided for 11.2.1, 11.2.2, 11.2.3 and 11.3.1).
Halogen has no obligation to provide M &S Services to Customer in relation to
Updates other than as described above.
4. CUSTOMER RESPONSIBILITIES
The M &S Services are only provided to Customer. Unless otherwise agreed
by the parties, Customer is solely responsible for first level support of its
Affiliates and employees.
Customer will make commercially reasonable efforts to cooperate with
Halogen in all problem resolutions. This includes but is not limited to providing
timely access to all required experts to resolve issues within Customer's
environment.
If Customer's deployment is on- premise, Customer will protect its data from
loss by implementing appropriate back -up procedures. Customer is solely
responsible for data restoration from back -ups.
5. EXCLUSIONS
If Customer's deployment is on- premise, Halogen shall have no obligation to
provide M &S Services if an Error is caused by: (a) relocation, movement,
improper operation, neglect or misuse of the Software, (b) Customers failure
to maintain proper site or environmental conditions, or (c) failure or interruption
of any electrical power, telephone or communication line or like cause.
If Customer's deployment is either on- premise or on- demand, Halogen shall
have no obligation to provide M &S Services if an Error is caused by: (a) any
fault of Customers agents or employees, (b) any attempts at repairs,
maintenance, or modifications to the Software performed by other than
authorized service personnel of Halogen, (c) unauthorized acts of third parties,
(d) service for the Software for which all required Updates have not been
implemented by Customer in accordance with Section 3 above, (e) problems
caused by third party software included with or embedded in the Software
(unless Customer is using a version of the Software for which support for such
third party software is available to Halogen or Halogen has agreed to the
inclusion of such third party software), (f) any other cause external to the
Software except ordinary use, (g) configuration of or failure of third party
hardware or software products, (h) improper sizing of hardware or software
platforms for the volume of data and users, or (i) any other service not
expressly set out in this Appendix B or which is expressly excluded in this
Appendix B.
The M &S Services do not include services or deliverables provided under a
Services Agreement or other services outside the scope of this Appendix B
such as support for unsupported releases of the Software. Maintenance and
support of such items may be obtained by Customer under a Professional
Services engagement.
6. HARDWARE COMPONENT FAILURE
Halogen is not responsible for Customer's hardware nor any components that
enable Customer to access Halogen's on- demand data center.
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TERM AND TERMINATION OF MAINTENANCE AND SUPPORT
SERVICES
Upon payment of the applicable Fees, Halogen will provide M &S Services to
Customer during the Term. In the event of abusive or unprofessional conduct
by one party which the other party determines materially affects its ability to
deliver the M &S Services described herein, such party shall so advise the
other party and representatives of each party's senior management shall
attempt to resolve such conduct issues, failing which, the party's
representative being complained of shall be replaced.
M &S Services are mandatory for the entire duration of the Term
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APPENDIX C
ON- DEMAND HOSTING SERVICES
HOSTING OF SOFTWARE
If applicable, Halogen will provide on- demand Hosting Services for the
Software on its server for the benefit of Customer for the Term of the
Agreement, unless such Hosting Services are terminated in accordance with
Section 6 of this Appendix C. Halogen shall provide the Software to Customer
in a secure environment, including protecting the infrastructure from the
external environment via firewall systems and protecting data transmission
over secure network connections using SSL technology. Roottadministrator
access will be controlled and limited to those that require access to support the
platform. The Software will be operated in an electronically restricted facility on
a raised floor with redundant HVAC, UPS and diesel generator power back -up,
and 24x7x365 surveillance of all hosted infrastructure and environmental
subsystems. All elements of the selected platform are clustered for
redundancy. As a standard service, Halogen currently conducts daily
encrypted incremental back -ups, and weekly and monthly encrypted full back-
ups. All back -ups are stored at an off -site location. Weekly back -ups are
rotated every 4 weeks; monthly back -ups are stored for 1 year. Charges may
apply should immediate restore of off -site back -ups be required through no
fault of Halogen. Unless otherwise agreed by the parties, the Hosting Services
shall be provided in respect of one (1) hosted site only.
CUSTOMER RESPONSIBILITIES
Customer's responsibilities include: (i) complying with all terms and conditions
imposed by Halogen in association with Customer's enjoyment of the Hosting
Services (as provided to Customer by Halogen from time to time); (ii) enabling
its own reliable high speed internet connectivity to and from the hosted server
(in respect of all locations that need access to the hosted Software); (iii) its
own customer premises equipment ( "CPE "), including but not limited to
administrator and end user workstations; (iv) all other customer relations,
fulfillment and obligations; (v) if applicable, all design and development of the
Reviews; and (vi) all configuration, use and operation of the Software
application to suit Customer's environment (collectively, "Designated
Customer Obligations "). Customer acknowledges and agrees that: (A) the
Designated Customer Obligations may change from time to time in conjunction
with Updates to the Software; and (B) a failure of Customer to comply with this
provision may, to the extent applicable, negate any support obligations on the
part of Halogen. Customer shall be responsible for all users who access
Halogen's servers and /or the Software. Customer will provide a primary
contact who can be reached by Halogen in the event of scheduled
maintenance or a service loss, and will provide Halogen with updates to the
primary contact's contact information in writing or by email.
Customer shall not: (i) copy or attempt to copy the Software; (ii) manipulate or
alter any data or other information on Halogen's servers other than Customer's
data; or (iii) utilize any automated system to access or to test the Hosting
Services or the Software, without the prior express written permission of
Halogen. Halogen reserves the right to immediately suspend Hosting Services
for any Customer who breaches the provisions of this Section.
SECURITY OF HOSTING SERVICES
Customer understands and agrees that Halogen will take commercially
reasonable precautions to ensure the Hosting Services are secure. However,
Customer acknowledges that the hosting activities will require transmission of
confidential information over the internet, and that the internet consists of
multiple participating networks that are not subject to the control of Halogen.
Customer therefore understands and agrees that Halogen cannot and does not
guarantee the privacy, security or authenticity of any information transmitted
over the Internet, due to the nature of the Internet. Halogen has made
provisions to increase the security of all data transfers by ensuring all data
transfers are done using a minimum 128 -bit SSL encryption. As the Halogen
hosting environment evolves with new technologies, Halogen will use
reasonable commercial efforts to maintain an equivalent or better level of
security and confidentiality of Customer's data.
As part of our ongoing commitment to security, Halogen regularly engages
third party experts to perform independent security audits. These audits
ensure all systems remain efficient in protecting valuable client information.
Halogen will provide assurance reports upon Customer request at no charge,
once per calendar year; additional requests for assurance reports during a
calendar year will be charged at the rate of US$500.00 per request. To ensure
ongoing security of all customer data, all sensitive data will be removed prior to
delivery to Customer. Halogen will notify Customer of any known breach of its
security related to areas, locations, or computer systems which contain any
Confidential Information of Customer in a timely manner following such breach
and shall cooperate with Customer to assist in regaining possession of the
Confidential Information and prevent its further unauthorized use, and take any
necessary remedial actions.
MAINTENANCE AND UPDATES
Halogen technicians and automated monitoring systems continually assess the
health of the Hosting Services. Halogen's Hosting Services are designed for
full availability; however, Halogen reserves the ability to schedule downtime
during the following maintenance windows: Saturday between 01:00 pm and
07:00p.m ET; and /or each evening between 00:00am and 2:00am ET.
Halogen will make commercially reasonable efforts to notify Customer of
scheduled maintenance (other than maintenance scheduled during the above
maintenance windows) at least twenty -four (24) hours in advance. Halogen is
solely responsible for updating the Software for Customers who have
purchased Hosting Services.
OWNERSHIP, CONFIDENTIALITY AND USE OF CUSTOMER DATA
Customer shall retain all right, title and interest in and to, and have the
exclusive use of, the results of Customer's data and Halogen shall have no
right, title or interest therein, except as expressly provided herein. Customer
may access the electronic records and reports containing such data that are
generated by the licensed Software. Subject to Section 6(b) of Schedule A,
during the Term, in no event shall Halogen deny Customer access to
Customer's data for purposes of backup or retrieval. Use of such data and
other information by Customer is at Customer's own risk.
Halogen may use Customer's data for (a) the purpose of generally improving
the look and feel of the Software, (b) compiling statistical and performance
information related to its provision of the Software and /or Services, and (c)
developing and distributing benchmarks and similar reports and databases
therefrom. Halogen may make this information publicly available so long as
Halogen, with respect to (b) and (c), above, (i) first removes all references to
Customer and any personal information included in the data; (ii) presents such
data in the form of aggregate benchmarks; and (iii) generates and publishes
benchmarks only when such benchmarks include data from at least seven (7)
other organizations. For back -up or testing purposes, Halogen may make
copies of Customer's data and any electronic records and reports containing
such data and maintain such copies for its records during the Term. Halogen
may, after the Term, maintain back -up copies of Confidential Information
received from Customer in a secure site, provided such back -up copies are
destroyed in accordance with Halogen's then applicable timeline and policies
for destruction of all of Halogen's back -up data.
Customer data and any electronic records and reports containing such data
that are stored on Halogen's servers are Confidential Information as defined in
Section 9 of Schedule A to this Agreement and may, depending on their
nature, include Personal Information as defined in Section 10 of Schedule A to
this Agreement. Halogen confirms that its obligations set out in Sections 9 and
10 of Schedule A to this Agreement apply to such data, records and reports.
TERMINATION OF HOSTING SERVICES
Halogen may terminate the Hosting Services: (i) immediately, if Customer fails
to pay the applicable Hosting Services Fees as required by this Agreement; or
(ii) upon 180 days notice in the event Halogen generally ceases to provide
Hosting Services for the Software licensed by Customer, in which event
Halogen shall refund the balance of any prepaid but unused Hosting Services
Fee.
Following the initial subscription term (as identified in Section 1 on Page 1 of
this Agreement), if, in accordance with Section 7 of Schedule A, Customer
renews the Agreement for subsequent successive one year terms, Customer
shall either: (i) elect to not renew the Hosting Services at the end of any such
initial subscription term by providing Halogen with at least thirty (30) days prior
written notice of its intention to terminate; or (ii) renew the Hosting Services in
accordance with such Section.
Upon written request from Customer received within ten (10) Business Days of
the effective termination date of the Hosting Services, Halogen will: (i)
electronically deliver to Customer a copy of the Customer's most recent full
data back -up; and (ii), if requested, provide Customer with a quotation and
Services Agreement for Customer's consideration with respect to conversion of
the data from Halogen's then-current Oracle format to a Halogen- supported
version of SQL. If further data manipulation in respect of such data is required
by Customer, Customer shall request same and Halogen will provide a
Services Agreement for Customer's consideration. No data manipulation
services will be undertaken by Halogen until Customer has approved and paid
for the associated costs in accordance with the applicable Services
Agreement.
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APPENDIX D
PROFESSIONAL SERVICES
(INSTALLATION, CONSULTING, TRAINING, CONVERSION AND DATABASE SERVICES)
Customer acknowledges and agrees that its use of the Software, and purchased, Level I component includes:
specifically its entitlement to receive M &S Services, requires payment of both a one (1) session (2 hours in total) with
One -Time Professional Services Fee and an Annual Professional Services a Halogen Implementation Consultant
Fee. The specific Professional Services included in the Implementation
Services Package selected by Customer are as follows: configure up to two (2) Halogen e360
MultiraterTm questionnaires to be used
in the configured Halogen
1. CERTAIN TO SUCCEED SERVICES: INITIAL LAUNCH AND eAppraisal TM template(s) noted above
CONTINUOUS ADVANCEMENT — LEVEL I
•
If Halogen eCompensationTM Initial Launch is
Halogen offers the following Certain to Succeed Services: Initial Launch and
purchased, Level I component includes:
Continuous Advancement for Halogen eAppraisalTm and Halogen e360
up to four (4) sessions (8 hours in
Mu Iti raterTM
total) with a Halogen Implementation
(a) Initial Launch — Level I — One -Time Professional Services for
Consultant
installation, consulting and training:
configure one (1) Halogen
eCompensationTM process
i. A Halogen Implementation Consultant will be assigned to
work with Customer remotely to ensure proper
If Halogen eSuccessionTM Initial Launch is
implementation of the Halogen product(s) licensed and to
purchased, Level I component includes:
assist Customer in the launch of their EPM project, for a total o
Phase 1: Assessment of Workforce Potential:
of 9 sessions, up to eighteen (18) hours (inclusive of
one (1) session (2 hours in total) with a
configuration and project planning). Deliverables include:
Halogen Implementation Consultant
• Use of the formal Halogen EPM implementation
integrate assessment questions in one (1)
methodology including the Halogen Implementation
Halogen eAppraisal TM process and up to
Workbook
two (2) form templates noted above to
• Halogen EPM project tracking
gather Halogen eSuccessionTM talent profile
• Weekly status updates and process reviews
data
• One (1) soft copy of custom Halogen EPM
configure the Halogen eSuccessionTm High
Configuration Summary Report
Potential Report
• Performance of the following configuration tasks by
configure the Halogen eSuccessionTM
Halogen's Professional Services team:
Retention Risk Report
• If Halogen eAppraisal TM Initial Launch is o
Phase 2: Implementation of Talent Pools and
purchased, Level I component includes:
Talent Assessment Initial Launch is licensed,
Level I component includes:
• up to eight (8) sessions (16 hours in
total) with a Halogen Implementation
up to six (6) sessions (12 hours in total) with
Consultant
a Halogen Implementation Consultant
• configure one (1) Halogen
configure one (1) Halogen eSuccessionTM
eAppraisal TM process with up to two
Talent Assessment process, including the
(2) form templates to be used in the
creation of up to two (2) Talent Pools
configured process, using standard
configure the Talent Pool Report
EPM functionality and competencies .
If Halogen eLearning Manager TM Initial Launch
• If Halogen eAppraisalTM Professional Services
is purchased, Level I component includes:
(includes Halogen e360 Multirater TM I Initial
up to five sessions (10 hours in
Launch is purchased, component includes:
a
total) with a Halogen Implementation
• up to twelve (12) sessions (26 hours
Consultant
in total) with a Halogen
integrate Halogen eLeaming
Implementation Consultant
Manager TM content into one (1) pre-
configure up to two (2) Halogen
existing Halogen eAppraisal TM
eAppraisal processes with up to three
process and up to two (2) pre -existing
(3) form templates to be used in the
Halogen eAppraisal TM form templates
configured processes, using standard
configure up to ten (10) learning
EPM functionality and competencies
objects
• configure up to three (3) Halogen
configure one (1) approval policy
e360 MultiraterTm questionnaires to be
used in the configured process(es) •
If Halogen Job Description Builder TM Initial
• If Halogen eAppraisal TM Healthcare Initial
Launch is purchased, Level I component
Launch is purchased, component includes:
includes:
• u p to twelve (12) sessions (26 hours
up to seven (7) sessions (14 hours in
u
in total) with a Halogen
total) with a Halogen Implementation
Implementation Consultant
Consultant
• consulting regarding process, form
configure one (1) job description
design and reporting to prepare for
process and one (1) job description
Joint Commission, OSHA, ACHA,
template
CCHSA, Magnet and other
If Halogen eRecruitmentTM Initial Launch is
accreditation reviews for up to two (2)
purchased, Level I component includes:
Halogen eAppraisal TM processes with
up to six (6) sessions (12 hours in
up to three (3) form templates to be
total) with a Halogen Implementation
used in the configured processes,
Consultant
using standard EPM functionality and
competencies
configure up to one (1) job requisition
template
• If Halogen e360 MultiraterT"" Initial Launch is
Village of North Palm Beach - SLSA - 09- 2014 -1211 - aa.td
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• configure up to one (1) application
form
• integration with client corporate
website
If Halogen 1:1 Exchange TM Initial Launch is
purchased, all Levels include:
• up to one (1) session (2 hours in total)
with a Halogen Implementation
Consultant
• configure 1:1 functionality, including
feedback types and conversation
starters
If Halogen@ Myers - Briggs@ Initial Launch is
purchased, all Levels include:
• up to three (3) sessions (6 hours in
total) with a MBTI certified Halogen
Consultant
• configure up to one (1) MBTI
assessment process
ii. On- demand: Halogen performs Software installation by creating
application site for Customer in Halogen's on- demand hosting
environment and providing access to Customer. OR
On- premise: Halogen assists Customer in Software installation
through web -based Technical IT installation and Technical Training
session (including user import if Customer is ready). In order to
enable Halogen to perform configuration activities including those
set out above, Customer must allow authorized Halogen
representatives to remotely access Customer's on- premise
environment.
In respect of certain of its Software modules, Halogen provides
standard Software training to a maximum of five (5) attendees per
class including trainees and observers, on -site at Customer's
premises, at Halogen's Training Center in Ottawa, Canada, or
delivered online.
• If Halogen eAppraisalTM is licensed, 1.5 days of
Administrator training
If Halogen eAppraisalTM Professional Services
(includes Halogen e360 MultiraterTM) is licensed, 2.0
days of Administrator training
• If Halogen eAppraisalTm Healthcare is licensed, 1.5
days of Administrator training
If Halogen e360 MultiraterTM is licensed, 0.5 day of
Administrator training
If Halogen eCompensationTM is licensed, 0.5 day of
Administrator training
If Halogen eSuccessionTM is licensed, 0.5 day of
Administrator training
If Halogen eLearning Manager TM is licensed, 0.5 day of
Administrator training
If Halogen Job Description Builder TM is licensed, 0.5
day of Administrator training
• If Halogen eRecruitmentTM is licensed, 0.5 day of
Administrator training
If Customer allows more than five (5) attendees per class as limited
above, Halogen reserves the right to invoice Customer at a rate of
US$375.00 per additional attendee.
Halogen provides applicable Administrator Reference Manual(s),
End User Guide(s), and tutorials in electronic format for the
Software product(s) licensed and implemented.
(b) Continuous Advancement — Level I - Annual Professional Services
(consulting and training) for administrators, managers and
employees. A total of 5 hours will be provided during each year of
the Term.
total each year with a Halogen Implementation Consultant to
perform the following:
Metrics Review and Analysis — up to two (2)
hours of consulting with a Halogen
Implementation Consultant to evaluate, review
reports and create an action plan from the
process(es) created as part of Customer's initial
implementation
• Process Optimization - up to two (2) hours of
consulting with a Halogen Implementation
Consultant to implement relevant items from
action plan outlined in the Metrics Review and
Analysis service and assist Customer in the re-
launch of the subsequent process created as part
of Customer's initial implementation
• Unlimited access to Halogen eAppraisalTM
administrator training content for up to two (2)
Halogen administrators
• Unlimited access to Halogen eAppraisalTM
Essential Training program for Managers and
Employees for up to five hundred (500)
employees
• If Halogen eAppraisalTM Professional Services (included
Halogen e360 Multirater TM ) Continuous Advancement is
purchased, component includes up to eight (8) hours in total
each year with a Halogen Implementation Consultant to
perform the following:
• Metrics Review and Analysis — up to four (4)
hours of consulting with a Halogen
Implementation Consultant to evaluate, review
reports and create an action plan from the
process(es) created as part of Customer's initial
implementation
• Process Optimization - up to four (4) hours of
consulting with a Halogen Implementation
Consultant to implement relevant items from
action plan outlined in the Metrics Review and
Analysis service and assist Customer in the re-
launch of the subsequent process created as part
of Customer's initial implementation
• Unlimited access to Halogen eAppraisalTm and
Halogen e360 MultiraterTm administrator training
content for up to three (3) Halogen administrators
Unlimited access to Halogen eAppraisalTm and
Halogen e360 MultiraterTm Essential Training
program for Managers and Employees for up to
five hundred (500) employees
• If Halogen eAppraisalTM Healthcare Continuous
Advancement is purchased, component includes up to eight
(8) hours in total each year with a Halogen Implementation
Consultant to perform the following:
• Metrics Review and Analysis — up to four (4)
hours of consulting with a Halogen
Implementation Consultant to evaluate, review
reports and create an action plan from the
process(es) created as part of Customer's initial
implementation
• Process Optimization - up to four (4) hours of
consulting with a Halogen Implementation
Consultant to implement relevant items from
action plan outlined in the Metrics Review and
Analysis service and assist Customer in the re-
launch of the subsequent process created as part
of Customer's initial implementation D
• Unlimited access to Halogen eAppraisalTM
administrator training content for up to three (3)
Halogen administrators
Halogen provides training and phased consulting services during Unlimited access to Halogen eAppraisalTM
each year of the Term. These services evaluate, analyze and Essential Training program for Managers and
report on processes, assist the Customer to launch the next Employees for up to five hundred (500)
process(es) and include annual access to 24x7 on demand training employees
content for administrators, managers and employees (as defined If Halogen e360 MultiraterTM Continuous Advancement is
below). purchased, Level I component includes one (1) hour in total
• If Halogen eAppraisalTM Continuous Advancement is each year with a Halogen Implementation Consultant to
purchased, Level I component includes up to four (4) hours in perform the following:
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• Process Review and Optimization - one (1) hour
of consulting to evaluate process efficiency and
assist Customer in the re- launch of the
subsequent process(es) created as part of
Customer's initial implementation
• Unlimited access to Halogen e360 MultiraterTM
administrator training content for up to two (2)
Halogen administrators
• Unlimited access to Halogen e360 MultiraterTM
Essential Training program for Managers and
Employees for up to five hundred (500)
employees
• If Halogen eCompensationTM Continuous Advancement is
purchased, Level I component includes up to two (2) hours in
total each year with a Halogen Implementation Consultant to
perform the following:
• Metrics Review and Analysis — one (1) hour of
consulting to evaluate, review reports and create
an action plan from the process(es) created as
part of Customer's initial implementation
• Process Optimization - one (1) hour of consulting
to implement relevant items from action plan
outlined in the Metrics Review and Analysis
service and assist Customer in the re- launch of
the subsequent process created as part of
Customer's initial implementation
• Unlimited access to Halogen eCompensationTM
administrator training content for up to two (2)
Halogen administrators
• Unlimited access to Halogen eCompensationTM
Essential Training program for Managers for up to
one hundred (100) managers
• If Halogen eSuccessionTM Continuous Advancement is
purchased, Level I component includes up to XX (X) hours in
total each year with a Halogen Implementation Consultant to
perform the following:
• Halogen eSuccessionTM Phase 1: Assessment of
Workforce Potential includes one (1) hour in total
each year with a Halogen Implementation
Consultant to perform the following:
• Metrics Review and Process
Optimization — one (1) hour of
consulting to evaluate, review reports,
create an action plan and assist
Customer in the re- launch of the
subsequent process(es) created as
part of Customer's initial
implementation
• Unlimited access to Halogen
eSuccessionTm administrator training
content for up to two (2) Halogen
administrators
• Unlimited access to Halogen
eSuccessionTm Essential Training
program for Managers for up to one
hundred (100) managers
• Halogen eSuccessionTM Phase 2: Talent Pools
and Talent Assessments includes up to three (3)
hours in total each year with a Halogen
Implementation Consultant to perform the
following:
• Metrics Review and Analysis — one
(1) hour of consulting to evaluate,
review reports and create an action
plan
• If Halogen eLearning Manager TM Continuous
Advancement is purchased, Level I component includes up
to two (2) hours in total each year with a Halogen
Implementation Consultant to perform the following:
• Metrics Review and Analysis - one (1) hour of
consulting to evaluate, review reports and create
an action plan
• Process Optimization - one (1) hour of consulting
to implement relevant items from action plan
outlined in the Metrics Review and Analysis
service and assist Customer in updating /adding
Teaming objects and approval policies as part of
Customer's initial implementation
• Unlimited access to Halogen el-earning
Manager TM administrator training content for up to
two (2) Halogen administrators
• Unlimited access to Halogen el-earning
Manager TM Essential Training program for
Managers and Employees for up to five hundred
(500) employees
• If Halogen Job Description Builder TM Continuous
Advancement is purchased, Level I component includes up
to four (4) hours in total each year with a Halogen
Implementation Consultant to perform the following:
Competency Library Review and Action Planning
— up to two (2) hours of consulting to conduct a
focused analysis of the results and create an
action plan
• Process Optimization - up to two (2) hours of
consulting to implement relevant items from
action plan outlined in the Competency Library
Review and Action Planning service and assist
Customer in the re- launch of the subsequent
process(es) created as part of Customer's initial
implementation
Unlimited access to Halogen Job Description
Builder TM administrator training content for up to
two (2) Halogen administrators
Unlimited access to Halogen Job Description
Builder TM Essential Training program for
Managers for up to one hundred (100) managers
• If Halogen eRecruitmentTM Continuous Advancement is
purchased, Level I component includes up to four (4) hours in
total each year with a Halogen Implementation Consultant to
perform the following:
Metrics Review and Analysis — up to two (2)
hours of consulting to evaluate metrics, review
stages and activities and create an action plan as
per deliverables identified in the initial
implementation
• Process Optimization — up to two (2) hours of
consulting to implement relevant items from
action plan outlined in the Metrics Review and
Analysis service
Unlimited access to Halogen eRecruitmentTM
administrator training content for up to two (2)
Halogen administrators
Unlimited access to Halogen eRecruitmentTM
Essential Training program for Managers for up to
one hundred (100) managers
• If Halogen 1:1 Exchange TM Continuous Advancement is
purchased, all Levels include up to two (2) hours in total each
year with a Halogen Implementation Consultant to perform
the following:
• Process Optimization - up to two (2) Metrics Review and Analysis — up to one (1) hour
hours of consulting to implement of consulting to evaluate metrics, review stages
relevant items from action plan and activities and create an action plan as per
outlined in the Metrics Review and deliverables identified in Section 1 (a) of this
Analysis service and assist Customer Appendix D
in the re- launch of the subsequent
process(es) created as part of Process Optimization — up to one (1) hour of
Customer's initial implementation consulting to implement relevant items from
action plan outlined in the Metrics Review and
Analysis service
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• Unlimited access to Halogen@ 1:1 Exchange TM
on- demand tutorials for up to two (2) Halogen
administrators
• If Halogen@ Myers - Briggs@ Continuous Advancement is
purchased, Level I component includes up to two (2) hours in
total each year with a MBTI certified Halogen Consultant to
perform the following:
Metrics Review and Analysis — up to one (1) hour
of consulting to evaluate metrics, review type
distribution and create an action plan
• Process Optimization — up to one (1) hour of
consulting to implement relevant items from
action plan outlined in the Metrics Review and
Analysis service
2. TRAINING MATERIALS & COPYRIGHT
Training materials are available only for the current standard release of the
Software product(s) licensed by Customer, and are only available where
Customer has paid the applicable Annual Professional Services Fee pursuant
to Section 6 of Schedule A to the Agreement. Customer acknowledges that
any reference materials provided by Halogen to Customer in electronic or hard
copy format in connection with training and /or consulting services are the
copyright of Halogen and are to be used by Customer for its internal use only.
Unless otherwise directed by Halogen, these materials are not to be
reproduced, copied or distributed by Customer in any form other than as
required to train Customer's employees. Videotaping or other electronic and /or
audiovisual recording of a training or consulting session conducted by a
representative of Halogen is strictly prohibited.
3. OTHER PROFESSIONAL SERVICES
Additional Professional Services may be procured from Halogen upon request
by Customer and execution of a Services Agreement in accordance with the
Agreement and this Appendix D.
Customer may also request additional consulting services from their Halogen
implementation consultant if required. Halogen's current rates for such
consulting services are as follows: US$1650 /month, which would entitle
Customer to work with a Halogen implementation consultant (approximately 2
hours per week to a maximum of 8 hours total per month) doing various tasks
to assist Customer. This includes but is not limited to meetings, forms or
process reviews or other tasks as discussed with Customer during regular
weekly meetings. Alternatively, Customer may contract for hourly assistance.
Halogen's current rates are US$250 /hour (web -based or telephone consulting);
or US$1650 /day (on -site consulting) plus travel & living expenses. Halogen
would be pleased to provide any or all of the above services by separate quote
pursuant to a Services Agreement.
4. CHANGE REQUESTS
Either party may, from time to time, wish to make changes to the Professional
Services or deliverables as set out in a Services Agreement ('Change
Requests "). Halogen and Customer will negotiate in good faith any changes
to costs, scope or delivery schedules arising from any requested Change
Request. Halogen will provide Customer with a quote for the mutually
acceptable changes in the scope or timing of the Professional Services, and
Customer shall indicate its acceptance of the quote in writing. No oral
agreement between persons involved in the project will be binding on either
Halogen or Customer. Unless and until a proposed Change Request has been
approved by the parties in writing, each party shall continue to perform its
obligations under the Services Agreement as if the change had never been
proposed.
5. PROFESSIONAL SERVICES EXPENSES
Halogen invoices expenses monthly, in arrears, as incurred. In connection
with Professional Services performed at Customer's site, if any, Customer is
responsible for actual travel and living expenses incurred by the Halogen
trainer and /or consultant. These expenses will be invoiced by Halogen upon
the completion of such on -site services, including without limitation, expenses
relating to air and land transportation, hotel accommodation, and meal per
diems and incidentals (maximum US$80.00 /diem local currency). If
transportation and /or hotel accommodation are arranged by Customer on
behalf of Halogen, such arrangements will be subject to Halogen's written pre -
approval. All travel and living expenses billed by Halogen in accordance with
its Travel & Expense Guidelines are due upon receipt of invoice.
If travel time is outside of the assigned Halogen training consultant's continent
of residence, Customer shall also pay to Halogen a flat fee of
US$1,500 /Halogen representative per on -site visit. Halogen recognizes the
following continents: North America, South America, Europe (including British
Isles), Asia, Africa, Australia and Antarctica. For clarity, travel to Hawaii,
Alaska, Puerto Rico and /or Mexico from North America will require payment of
the foregoing fee.
In connection with Professional Services performed at Customer's site, if any,
Customer is generally responsible for the reimbursement of travel and living
expenses incurred by Halogen due to flight cancellations or missed travel
connections which are not caused by the actions of Halogen or its
employeestagents.
Customer shall have the following alternatives with respect to teleconferencing:
(i) if Customer is located within Global Crossing's North American IFN toll -free
calling area Customer will have the option to use "GoToMeeting" (Web) and /or
an IFN toll -free number; (ii) if Customer is International and located within
Global Crossing's current UIFN toll -free calling area Customer will have the
option to use "GoToMeeting" (Web) and /or a UIFN toll -free number, and (iii) if
Customer is International and located outside of Global Crossing's current
UIFN toll -free calling area Customer will be asked to either call Halogen
directly or provide their toll -free number for Halogen's use.
6. SCHEDULING & POSTPONEMENT /CANCELLATION
The stated project timelines referenced above are based upon delivery of the
Professional Services in an uninterrupted manner over consecutive weeks per
Software module. Customer acknowledges and agrees that requests by
Customer to suspend the delivery of certain Professional Services may incur
additional costs.
Specifically, training and consulting services must be booked and taken within
the first twelve (12) months from the Effective Date as defined herein.
Scheduling for training /consulting should be done as early as possible to assist
in travel arrangements. If Customer postpones, cancels or fails to attend a
scheduled training or consulting engagement without a minimum of ten (10)
Business Days prior written notice to Halogen, Customer shall pay to Halogen
a lost utilization fee equal to the lesser of (i) $1,650 (local currency); and, (ii)
the training /consulting engagement contract value. In addition, Customer shall
pay to Halogen all unrecoverable fees and expenses associated with such
cancellation, including without limitation, non - refundable travel costs. Such
fees and expenses shall be invoiced by Halogen in a timely manner following
Customer's cancellation.
All web -based training session(s) and related services will be delivered via the
use of a combination of web collaboration software (for screen interaction) and
telephone (for voice communication). Halogen expressly disclaims all
warranties and representations regarding the quality of such web collaboration
software and voice communication services, including without limitation that
such services will be uninterrupted, timely, secure or error free. Customer
specifically acknowledges and agrees that all training session(s) will take place
at the mutually agreed upon time(s).
ASSUMPTIONS, CUSTOMER RESPONSIBILITIES AND
ACKNOWLEDGMENTS
• Customer will provide a single point of contact with authority to
work with Halogen.
• Customer is responsible for providing the required text for the
Email Notification Center.
• Customer is responsible for performing a final quality check.
• Customer is responsible for utilizing Halogen's hot -line support as
required for software support related issues. Customer is
responsible for creation and maintenance of all additional content.
• Customer is responsible for all user center data, global settings
within the options functionality, and extracting data for report
generation with external tools.
• Customer will be required to complete, execute and return to
Halogen a Configuration Sign -off Form prior to Customer's
deployment of the Halogen EPM application, failing which, Halogen
disclaims all liability for system configuration issues, if any, which
may be experienced by Customer.
• Customer is responsible for the provision of the employee data in
the required import format and for validating the import of data in
the Halogen EPM User Center.
• Annual Metrics Review and Action Planning, and Process
Optimization services will be performed on configuration of
deliverables outlined in Section 1(a) of this Appendix D and cannot
be transferred without following Halogen's standard Change
Request process.
• Halogen reserves the right to add, delete or modify any training
content provided pursuant to Section 1 ofthis Appendix D.
• Halogen will provide Professional Services to Customer in English
only. Customer is responsible for providing an English speaking
point of contact and for all translation requirements.
• Halogen will make all reasonable efforts to accommodate global
time zones. To that effect, Halogen will provide Customer with
access to staff resources identified in Section 1 of this Appendix D
within standard working hours where the Halogen team member
resides.
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• Notwithstanding anything contained in this Appendix D, Customer
acknowledges that in the event Customer requires or is entitled to
0.5 day or less of training or on -site consulting, Halogen will
provide such training or consulting via the web, rather than via an
on -site session. In the event that Customer requests an on -site
session for 0.5 days or less of training or consulting, Customer
shall be required to purchase an additional 0.5 day of additional
services for a minimum total of 1.0 day of on -site services.
• If Halogen eAppraisalTM is licensed:
• Implementation of core Halogen eAppraisalTM functionality
such as linking to corporate goals, development planning and
setting up talent profiles is included in this service package
• Customer is responsible for providing the development plan
data in the required import format and forvalidating the final
development plan content.
• Customer is responsible for identifying the subjects of the
appraisal process(es) and for validating the Halogen EPM
Participant Center.
• Customer is responsible for defining and approving the process
steps (workflow) required to support the appraisal process(es) as
well as for monitoring processes.
• Standard functionality will be used. Specifically, standard
Halogen eAppraisalTM competencies will be used in the form
design. If required, Customer will receive sufficient guidance to
implement their specific competencies.
Customer will provide all appraisal forms to be created to
Halogen in MS Word or MS Excel format.
Customer understands that the forms available within the
Halogen eAppraisalTm application may not appear as exact
duplicates of the Customer's original MS Word or Excel forms, and
that minor variations in form appearance may be required in order
to better leverage the capabilities of the Halogen eAppraisalTM
software.
• Form templates outlined in Section 1(a) of this Appendix D are
to be used within the same process configured by Halogen. For
example, if the Customer is deploying an annual appraisal process,
up to two (2) form templates will be created to support the annual
appraisal process (i.e. a manager and an employee form, or an
exempt and non exempt form). Form(s) to support processes not
configured by Halogen can be purchased under a separate
Services Agreement. For example, if Customer is deploying an
annual appraisal process with one (1) form template and chooses
to also deploy a goal setting process then the goal setting form
template would not be included.
• If Halogen eSuccessionTM is licensed:
Customer is responsible for supplying succession planning
business rules and workflow, talent pools and related
competencies.
• If Halogen eCompensationTM is licensed:
Customer is responsible for supplying compensation business
rules and workflow.
• If Halogen eLearning Manager TM is licensed:
• Customer is responsible for supplying all learning content in the
required import format and forvalidating the import of data.
• If Halogen eLearning Manager TM is licensed without any other
modules:
• Customer is responsible for supplying all learning content in the
required import format and for validating the import of data.
• Implementation of core Halogen eAppraisalTM functionality
such as linking to corporate goals, development planning and
setting up talent profiles is included in this service package
Customer is responsible for providing the development plan
data in the required import format and forvalidating the final
development plan content.
• Standard functionality will be used. Specifically, standard
Halogen competencies will be used in the development planning
and Halogen eLearning Manager TM configuration. If required,
Customer will receive sufficient guidance to implement their
specific competencies.
• If Job Description Builder TM is licensed:
Customer understands that the job descriptions available within
the Halogen Job Description BuilderTm application may not appear
as exact duplicates of the Customer's original MS Word or Excel
forms, and that minor variations in form appearance may be
required in order to better leverage the capabilities of the Halogen
Job Description Builder TM software.
• If Job Description Builder TM is licensed without any other
modules:
Customer understands that the job descriptions available within
the Halogen Job Description BuilderTm application may not appear
as exact duplicates of the Customer's original MS Word or Excel
forms, and that minor variations in form appearance may be
required in order to better leverage the capabilities of the Halogen
Job Description Builder TM software.
• Implementation of core Halogen eAppraisalTM functionality
such as linking to corporate goals, development planning and
setting up talent profiles is included in this service package
• Creating and managing competency libraries is included in this
service package.
• If Halogen eRecruitmentTM is licensed:
• Customer is responsible for all data entry required to enter pre-
existing job requisitions and candidate information. Customer can
contract Halogen to perform these services pursuant to a separate
Services Agreement.
• Additionally, Customer acknowledges and agrees that:
• delays by Customer in providing information and decisions to
Halogen may negatively impact the dates, prices and
scheduling commitments expressed in this Agreement.
• the following deliverables are not included in this Agreement
but Halogen would be pleased to provide a separate
quotation for such services:
• If Halogen eAppraisalTM is licensed, data entry of
corporate goals/departmental goals
• If Halogen eAppraisalTM is licensed, custom comment
helper
• If Halogen eLearning Manager TM is licensed, import
of historical course data
• Deployment of a multi - lingual environment
• Significant changes to the Halogen UI property file
8. TERMINATION OF ANNUAL PROFESSIONAL SERVICES
Following the initial subscription term (as identified in Section 1 on Page 1 of
this Agreement), if, in accordance with Section 7 of Schedule A, Customer
renews the Agreement for successive one year terms, Customer shall either (i)
elect not to renew the Annual Professional Services at the end of such initial
subscription term, or any renewal term, by providing Halogen with at least thirty
(30) days prior written notice of its intention to terminate; or (ii) renew the
Annual Professional Services in accordance with such Section.
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ADDENDUM
to the Subscription Software License and Services Agreement
(# 09- 2014 -1211) ( "Agreement ")
between
Halogen Software Inc. ( "Halogen ")
and
Village of North Palm Beach ( "Customer ")
WHEREAS Halogen and Customer wish to amend the terms and conditions contained within the Agreement as set
forth below ( "Addendum ");
NOW THEREFORE in consideration of the mutual covenants and promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The effective date of this Addendum shall be the date it has been signed by both parties.
Subject to the terms and conditions contained within this Addendum, the terms and conditions of the
Agreement shall continue in full force and effect. Where reference is made in this Addendum to a schedule or
section number, it shall refer to a schedule or section number in the Agreement, unless otherwise stated.
Unless otherwise defined in this Addendum, all capitalized words utilized in this Addendum shall have the
same meaning as defined in the Agreement.
3. The parties agree to amend the Agreement as follows:
Schedule A (General Terms and Conditions)
(a) Section 14 (Dispute Resolution) is hereby modified to read: EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. EACH OF THE
PARTIES HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(b) The following is hereby added as new Section 18(I) (Attorney's Fees): If any legal action or other
proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provisions of this Agreement, the
successful or prevailing party or parties shall be entitled to recover reasonable attorney's fees, court
costs and all expenses (including taxes) even if not taxable as court awarded costs (including,
without limitation, all such fees, costs and expenses incident to appeals), incurred in that action or
proceeding, in addition to any other relief to which such party or parties may be entitled.
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This Addendum shall be interpreted as part of and in the manner set out in the Agreement. This Addendum
shall supersede all previous representations and discussions, either oral or written, relating to its subject
matter, and may not be modified except by a written document signed by both parties.
IN WITNESS WHEREOF the parties hereto have executed this Addendum.
Halogen Software Inc.
Signature:
Name:
Title:
Date:
Village of North Palm Beach
Signature:
Name:
Title:
Date:
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