HomeMy WebLinkAboutAgenda Report - June 15, 2022 C-12AGENDA ITEM
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C A L I F O R N I A
C-12
COUNCIL COMMUNICATION
AGENDA TITLE: Adopt Resolution Authorizing the City Manager to Execute Amendment 1 With Kronos
Incorporated, a Massachusetts corporation, for Cloud -Based Time Management and
Scheduling Software (28,500)
MEETING DATE: June 15, 2022
PREPARED BY: Fire Chief
RECOMMENDED ACTION: Adopt Resolution Authorizing the City Manager to Execute Amendment 1
With Kronos Incorporated, a Massachusetts corporation, for Cloud -Based
Time Management and Scheduling Software (28,500)
BACKGROUND INFORMATION: Since 2007, the Lodi Fire Department has utilized Telestaff software for
time management and scheduling shifts. All staff have been trained on this
software system that is used for taking time off, calling for overtime, and
tracking resources and personnel.
Amendment 1 will execute the two one-year options to extend and approve funding for each year, The software
costs are already factored into the fire departments annual budget. The two one-year options to extend will cost
approximately $14,250 each year.
FISCAL IMPACT: $14,250 annually for fiscal year 2023 and 2024. Result is increased
productivity and less strain on Information Technology resources.
FUNDING AVAILABLE: Fire Administration Account No. 10040001.72369
Andrew Keys
Andrew Keys
Deputy City Manager/Internal Services Director
Kenneth Johnson
Fire Chief
APPROVED: Steve Schwabauer
Stephen Schwabauer, City Manager
AMENDMENT NO. 1
KRONOS INCORPORATED, a corporation doing business in California
as Kronos Data Systems Incorporated
WORKFORCE CENTRAL SOFTWARE AS A SERVICE TERMS AND CONDITIONS
THIS AMENDMENT NO. 1 TO WORKFORCE CENTRAL SOFTWARE AS A SERVICE
TERMS AND CONDITIONS, is made and entered this day of 2022, by and
between the CITY OF LODI, a municipal corporation (hereinafter "CITY"), and KRONOS
INCORPORATED, a Massachusetts corporation doing business in California as Kronos Data
Systems Incorporated (hereinafter "CONTRACTOR").
WITNESSETH:
1. WHEREAS, CONTRACTOR and CITY entered into a Workforce Central Software as a
Service Terms and Conditions on August 20, 2019 ("Agreement"), as set forth in Exhibit 1,
attached hereto and made part of; and
2. WHEREAS, CITY is requesting to extend the contract through June 30, 2025 and increase the
fees by an amount not to exceed $28,500.00, for a total not to exceed amount of $79,780.00,
as set forth in Exhibit 2, attached hereto and made part of; and
3. WHEREAS, CONTRACTOR agrees to said amendment.
NOW, THEREFORE, the parties agree to amend the Agreement as set forth above. All other
terms and conditions of the Agreement remain unchanged.
IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this Amendment No. 1 on
the date and year first above written.
CITY OF LODI, a municipal corporation,
hereinabove called "CITY"
STEPHEN SCHWABAUER
City Manager
Attest:
OLIVIA NASHED, City Clerk
Approved as to Form:
KRONOS INCORPORATION., a Massachusetts
corporation doing business in California as
Kronos Data Systems Incorporated,
hereinabove called "CONTRACTOR"
Scott Giangrande
Title: Senior Order Processing Analyst
JANICE D. MAGDICH, City Attorney --tl
Exhibit 1
WORKFORCE CENTRAL - SOFTWARE AS A SERVICE
TERMS AND CONDI'T'IONS
Customer and Kronos Incorporated agree that the terms and conditions set forth below shall apply to the Kronos
supply ofthe commercially available version of the Workforce Central SaaS Applications in Kronos' hosting
environment, the services related thereto, and the sale or rental of Equipment (if any) specified on a Kronos
Order Form, The Applications described on (lie Order Form shall be delivered by means of Customer's
permitted access to the Kronos infrastructure hosting such Applications,
Kronos and Customer hereby further agree that Kronos and/or its direct and indirect majority owned
subsidiaries may enter into orders with Customer and/or its direct and indirect majority owned subsidiaries
subject to the terms and conditions of this Agreement. By signing and entering into an Order Form that
expressly references this Agreement, each such subsidiary of Kronos and/or Customer will be deemed to
have agreed to be bound by the terms and conditions of this Agreement and all references in this Agreement
to "Kronos" shall be references to the applicable Kronos entity entering into the order, and all references in
this Agreement to "Customer" shall be references to the applicable Customer entity entering into the order.
1. DEFINITIONS
"Acceptable Use Policy" means the Kronos policy describing prohibited uses ofthe Services as further
described at: ,coa>t f c' • l 1 -use
"Agreement" means these terms and conditions and the Order Form(s).
"Application(s)" or "SaaS Application(s)" means those Kronos software application programs set forth on
an Order Form which are made accessible for Customer to use under the terms of this Agreement.
"Billing Start Date" means the date the billing of the Monthly Service Fees commences as indicated on the
applicable Order Form. Notwithstanding, Implementation Services provided on a time and material basis are
billed monthly as delivered, The Billing Start Ualo ofthe Monthly Service Fees for any Services ordered by
Cwtonter atter the dale of this Agreement which ure incremental to Customer's then -existing Services shall
be the date the applieablu Order Dorm is executed by Kronos and Customer,
"Cloud Services" means those services related to Customer's cloud environment as further described at:
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"Confidential Information" means any non-public information of a party or its Suppliers relating to such
entity's business activities, financial affairs, technology, marketing or sales plans that is disclosed pursuant
to this Agreement and reasonably should have been understood by the receiving party, because of(i) legends
or other markings, (ii) the circumstances of disclosure or (iii) the nature of the information itself, to be
proprietary or confidential to the disclosing party or its Suppliers.
"Customer Content" means all contcnt Customer, or others acting on behalf of or through Customor, posts
or otherwise inputs into the Services,
"Documentation" means user manuals published by Kronos relating to the features and functionality of the
Applications.
"Equipment" means the Kronos equipment specified on an Order Form,
"Implementation Services" means those professional and educational services provided by Kronos to set
up the cloud environment and configure the Applications. Unless otherwise set forth on an Order Form as
"a la carte" services (supplemental fixed tee, fixed scope services) or "bill as you go" services (time and
material services described in a Statement of Work), Kronos will provide, as part of the Monthly Service Fee
for the Applications, the fixed fee, fixed scope Implementation Services described in the Services
Implementation Detail set forth at: hltps,//www,kronos.com/wfe-saas-impl emcntation-guideline-details-
Flat-fee
"Initial Term" means the initial billing term of the Services as indicated on the Order Form. The Initial
Tenn commences on the Billing Start Date, Customer may have access to the Services prior to the
commencement ofthe Initial Term,
"KnowledgePass Content"/"Knowledge Pass Education Subscription" have the meanings ascribed in
Section 7.5.
"Monthly Service Fee(s)" means the monthly fees described in an Order Form. Monthly Service Fees
include fees for usage of the Applications and the Services, Cloud Services as applicable, and Equipment
rental, if any. Billing ofthe Monthly Service Fee(s) commences on the Billing Start Date,
Rev. 10242018
"Order Form" means an order form mutually agreed upon by Kronos and Customer setting forth the items
ordered by Customer and to be provided by Kronos, including without limitation the prices and fees to be
paid by Customer.
"Personally Identifiable Data" means information concerning individually identifiable employees of
Customer that is protected against disclosure under applicable law or regulation.
"Renewal Term" means the renewal billing term of the Services as indicated on the Order Form.
"Services" means (i) the Cloud Services, (ii) accessibility to the commercially available version of the
Applications by means of access to the password protected customer area of a Kronos website, and all such
services, items and offerings accessed by Customer therein, and (ii) the Equipment rented hereunder, if any.
"Statement of Work", "SOW", "Services Scope Statement" and "SSS" are interchangeable terms
referring to a written description of the Implementation Services mutually agreed upon by Kronos and
Customer and set forth as "bill as you go" services on the Order Form,
"Supplier" means any contractor, subcontractor or licensor of Kronos providing software, equipment and/or
services to Kronos which are incorporated into or otherwise related to the Services, Kronos may at its sole
discretion replace a Supplier, provided that a change to Supplier will not have a materially adverse effect on
the Services delivered by Kronos under this Agreement.
"Term" means the Initial Term and any Renewal Terms thereafter,
"Training Points" fins the meaning ascribed to it in Section 7.6 below.
2. TERM
2.1 Billing for the Services commences on the Billing Start Date, and continues for the Initial'I'erm or until
terminated in accordance with the provisions hereof, At the expiration of the lnitial'ferm and each Renewal
Term as applicable, the Services shall automatically renew each year for an additional Renewal Term until
terminated in accordance with the provisions hereof.
2.2 Either party may terminate the Services and this Agreement to be effective at the expiration of the then
current Term upon no less than 60 days prior written notice.
2.3 Either party may terminate the Services and the Agreement upon a material breach of the Agreement
by the other party if such breach is not cured within 15 days after receipt of written notice,
2.4 In the event that either party becomes insolvent, makes a general assignment for the benefit of creditors,
is adjudicated a bankrupt or insolvent, commences it case under applicable bankruptcy laws, or files a petition
seeking reorganization, the other party may request adequate assurances of future performance. Failure to
provide adequate assurances, in the requesting party's reasonable discretion, within 10 days of delivery of'
the request shall entitle the requesting party to terminate the Agreement immediately upon written notice to
the other party.
2.5 If the Agreement is terminated for any reason;
(a) Customer shall pay Kronos within thirty (30) days ot'such termination, all fees accrued and unpaid under
this Agreement prior to the effective date of such termination, provided however, if Customer terminates
for material breach of the Agreement by Kronos, Kronos shall refund Customer any pre -paid fees t6r
Services not delivered by Kronos;
(b) Customer's right to access and use the Applications shall be revoked and be of no further force or effect
,arid return rented Equipment as provided in Section 9.1 below;
(c) Customer agrees to timely return all Kronos-provided materials related to the Services to Kronos at
Customer's expense or, alternatively, destroy such materials and provide Kronos with an officer's
certification of the destruction thereof; and
(d) All provisions in the Agreement, which by their nature are intended to survive termination, shall so
survive.
2.6 Customer Content shall be available to Customer to retrieve at any time and at no additional charge
throughout the Term and for no more than 15 days after expiration or termination of the Agreement for any
reason. After such time period, Kronos shall have no further obligation to store or make available the
Customer Content and will securely delete all Customer Content without liability of any kind.
3. FEES AND PAYMENT
3.11 Customer shall pay Kronos the Monthly Service Fees, the lees for the Irrrpleiltentation Services and any
additional one: time or recurring fees for Equipntent, Training Points, Knowledgellass Fdueation Subscription
and such other Kronos offerings, all as set forth an the Order Form. The Monthly Service Fees will be
invoiced en the frequency set forth on the Order Form ("Milling Frequency"), If Customer and Kronos have
Rev. 10242018
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comply with all copyright and other intellectual property rights notices contained oil or in any information
obtained or accessed by Customer through the Services.
4.5 When using and applying the infortnation generated by the Services, Customer is responsible for ensuring
that Customer complies with applicable laws and regulations. If the Services include the Workforce Payroll
Appiicatious or Workforce Absence Management Applications: (i) Customer is solely responsible for the
oonteni and accuracy of'all reports arrd documents prepared in whole or in part by using these Applications,
(ii) using these Applicutions dives not release Customer of any professional obligation concerning the
preparation and review of any reports and documents, (iii) Customer does not rely upon Kronos, Best
Software, Inc. or these Applications for any advice or guidance regarding compliance with fbderal and state
laws or the appropriate lax treatment of items reflected on such reports or documents, and (iv) Customer will
review any calculations made by using these Applications and satisfy itself that those calculations are correct.
5. ACCEPTABLE USE
5.1 Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the
Services, and to ensure that no persons authorized to have such access shall take any action that would be in
violation of this Agreement, Customer is responsible for all activities undertaken under the auspices of its
passwords and other login credentials to use the Services.
5.2 Customer represents and warrants to Krortos that Customer has the right to publish and disclose the
Customer Content in connection with the Services. Customer represents and warrants to Kronos that the
Customer Content will comply with the Acceptable Use Policy.
5.3 Customer will not (a) use, or allow the use of, the Services in contravention of the Acceptable Use Policy.
5.4 Kronos may suspend the Services immediately upon written notice in the event of any security risk,
negalivo impact on infrastructure or Acceptable Use Policy violation.
6. CONNECTIVITY AND ACCESS
Customer acknowledges shat Customer shall (a) be responsible for securing, paying for, and nraintaining
cantueclivity to the Services (including any and all related hardware, software, networking, Internet access,
third party services rind related equipinwil and components); and (b) provide Kronos and Kronos'
representatives with such physical or remule access to Customer's computer and network environment as
Kronos deems reasonably necessary in order for Kronos to perforin its obligations under the Agreement.
Customer will make all necessary arrangements as may be required to provide access to Customer's
computer and network environment if necessary fur Kronos to perform its obligations under the Agreement.
7. IMPLEMENTATION AND SUPPORT
7.1 Implementaflon Services. Krunus will provide [he lntplernentation Services to CnStOnItT.
I mpiemeniation Sel vices described in an SOW are provided on a tinge and materials basis, billed moitthly as
delivered unless otherwise indicated all the Order form. Implementation Services described in the Services
Implementation Guideline are provided on a flat I'ee basis. If Customer requests additional Implementation
Services beyond thirst described in tete Services implementation Guideline, Kronos will create a change artier
for Quiumer's review and approval and any additionnl Implementation Services to be provided by Kronos
will be billed as delivered of [lie then-current Kronus prtlfesslUnnl servicts rates. Kronos' Wnfig+uralron of
the Appficat ions will be based on iitforination and work Ilow s that Krunus oblasins Froin Custnlive r duririg tate
discovery portion of the implemenlatiotl. Customer shall provide Kronos with all necessary and accurate
configuration-related intbrmation in a timely manner to ensure that mutually agreed implementation
schedules are met. In the event that Kronos is required to travel to Customer's location during the
implementation, Customer agrees to pay any travel expenses, such as airfare, fudging, meals and local
transportation, plus an administrative fee often percent (10%) of the amount ofsuch travel expenses, incurred
by Kronos in accordance with the then-current standard Kronos travel and expense policies, which Kronos
will provide to Customer upon request. Kronos shall invoice Cuslomer for such travel expenses and payment
thereof shall be due net thirty (30) days from date of invoice. Krunus' then-current ProfessitmallEducalional
Services Policies shall apply to all Implementation Services provided by Krona% and may be accesmil at:
t s t ' % • I1 l r e , li ' ("Prufbssiunal Services
Policies"). In the event of a conflict between tilt! Professionul Services Policies and this Agreement, the
terms of this Agreement shall prevail.
7.2 44d i imial Services. Customer may engage Kronos to provide other services which may be fixed by
activity (% la carte") or provided oil a time and lttaterials basis ("bill as you go") as indicated on the applicable
Order Form.
Key 10242018
7.3 Support. Kronos will provide 24x7 support fbr the cloud infrastructure, the availability to the cloud
environment, and telephone support for the logging of functional problems and user problems. Customer
may log questions online via the Kronos Customer Portal. As part of such support, Kronos will make updates
to the Services available to Customer at no charge as such updates are released generally to Kronos'
customers. Customer agrees that Kronos may install critical security patches and infrastructure updates
automatically as part of the Services. Kronos' then -current Support Services Policies shall apply to all
Support Services provided by Kronos and may be accessed at:
S n ur .' • ' 'r t t ("Support Policies"). In the event of a conflict
between the Support Policies and this Agreement, the terms of this Agreement shall prevail.
7.4 Saipporl Services Jbr It'quipnnen[. Provided Customer has purchased support services for the Equipment,
the following terms shall apply (Depot Exchange support services for rented Equipment are included in the
rental tees for such Equipment):
(a) Customer may select, as indicated on an Order Form, an Equipment Support Services option offered by
the local Kronos entity responsible for supporting the Equipment if and as such offerings are available within
the Kronos territory corresponding to the Equipment's location, Kronos shall provide each Equipment
Support Services offering as specified herein.
(i) lftot fixeltuM ttnd Dgps?i ft9ligir. If Customer has selected Depot Exchange or Depot Repair
Equipment Support Services, the following provisions shall apply: Upon the failure of installed Equipment,
Customer shall notify Kronos of such failure and Kronos will provide remote fault isolation at the FRU (Field
Replacement Unit) or subassembly level and attempt to resolve the problem. Those failures determined by
Kronos to be Equipment related shall be dispatched to a Kronos Depot Repair Center, and Customer will be
provided with a Return Material Authorization Number (RMA) for the tailed Equipment if Custorner is to
return the tailed Equipment to Kronos, as reasonably determined by Kronos. Customer must return the tailed
Equipment with the supplied RMA number. Hours ol'operation, locations and other inlbrmation related to
Kronos' Depot Repair Centers are available upon request and are subject to change. Return and repair
procedures for (ailed Equipment shall be provided based on the Depot option - Depot Exchange or Depot
Repair - selected by Customer on the applicable Order Form and as specified herein and in Kronos' then -
current Support Services Policies, Service packs for the Equipment (as described in subsection (ii) below)
are included in both Depot Exchange and Depot Repair Support Services.
Depot Exchange: Kronos will provide a replacement for the failed Equipment at the FRU or
subassembly level on an "advanced exchange" basis, utilizing a carrier of Kronos' choice.
Replacement Equipment will he shipped for delivery to Customer's location as turther described in
the Support Policies. REPLACEMENT EQUIPMENT MAY BE NEW Olt RECONDITIONED,
Customer shall specify the address to which the Equipment is to be shipped. All shipments will
include the Kronos provided RMA designating the applicable Kronos Depot Repair Center, as the
recipient. Customer, upon receipt of the replacement Equipment from Kronos, shall package the
defective Equipment in the materials provided by Kronos, with the RMA supplied and promptly
return failed Equipment directly to Kronos.
Depot Repair: Upon failure of installed Equipment, Customer shall install a Spare Product (as
defined below) to replace the failed Equipment. Customer shall then return the failed Equipment,
with the required RMA, to the applicable Kronos Depot Repair Center. Customer shall make
reasonable efforts to return the failed Equipment using the same or substantially similar packing
materials in which the original Equipment was sent. Customer shall also specify the address to which
the repaired Equipment should be return shipped. Upon receipt of the tailed Equipment, Kronos
shall repair the failed Equipment and ship it, within ten (10) business days after receipt, to Customer,
Kronos shall ship the repaired Equipment by regular surface transportation to Customer.
(ii) ? •v' • S wan: 110olgapilly. If Customer has selected Device Software Equipment Support
Services, Customer shall be entitled to receive:
(A) Service packs for the Equipment (which may contain system software updates, firmware
updates, security updates, and feature enhancements) available liar download at Kronos' customer
portal, Service packs for the Equipment are not installed by the Kronos Depot Repair Center but
are available for download at Kronos' customer portal, provided Customer is maintaining the
Equipment under an annual Equipment Support Services plan with Kronos.; and
Rev 10242018
(13) Access to the Kronos Support Services Center for the logging of requests for assistance
downloading service packs for the Equipment.
(b) Warranty, Kronos warrants that all service packs and firmware updates provided under this Agreement
shall perform in accordance with the Kronos published specifications in all material respects for a period of
ninety (90) days after download by Customer. In the event of a breach of this warranty, Customer's exclusive
remedy shall be Kronos' repair or replacement of the deficient service pack(s) or firmware update(s), at
Kronos' option, provided that Customer's use, installation and maintenance thereof have conformed to the
specifications.
(c) Responsibilities ofCltstomer. It is Customer's responsibility to purchase and retain, at Customer's
location and at Customer's sole risk and expense, a sufficient number of spare products ("Spare Products")
to allow Customer to replace failed Equipment at Customer's lucations in order for Customer to continue its
operations while repairs are being performed and replacement Equipment is being shipped to Customer. For
each of the Depot Exchange and Depot Repair Equipment Support Services options, Customer agrees that it
shall return tailed Equipment promptly as the failures occur and (fiat it shall not hold failed Equipment and
send failed Equipment to Kronos in "batches" which shall result in a longer turnaround time to Customer. In
addition, Customer agrees to;
(i) Maintain the Equipment in an environment conforming to the Kronos published specifications
for such Equipment;
(ii) Not perlorn self -repairs on the Equipment (i.e., replacing components) without prior written
authorization from Kronos;
(iii) De -install all failed Equipment and install all replacement Equipment in accordance with
Kronos' written installation guidelines;
(iv) Ensure that the Equipment is returned to Kronos properly packaged; and
(v) Obtain an RMA before returning any Equipment to Kronos and place the RMA clearly and
conspicuously on the outside of the shipping package. Customer may only return the specific
Equipment attlhorized by Kronos when issuing the RMA.
(d) Delivery. All domestic shipments within the United Slates are F013 Destination to/from Customer and
Kronos with the shipping party bearing all costs and risks of loss, and with title passing upon delivery to the
identified destination. All international shipments from Kronos to Customer are DAP (Incoterms 2010) to
the applicable Customer location, and are DDP (Incoterms 2010) to the applicable Kronos Depot Repair
Center when Customer is shipping to Kronos, and with title passing upon delivery to the identified
destination. Customer is responsible for all duties and taxes when sending Equipment to Kronos.
7.5 KnoivieclgePass Eclucalion Subscription. When KnowledgePass Education Subscription is purchased
on an Order Form (i.e., not indicated as "Included" in the Monthly Service Fees), Kronos will provide
Customer with the KnowledgePass Education Subscription for a period of one ( I ) year from execution of the
Order Form. Kronos will send Customer a renewal invoice for renewal of the KnowledgePass Education
Subscription, and the KnowledgePass Education Subscription shal I renew for an additional one (1) year term
if Customer pays such invoice before the end of the then -current term for the KnowledgePass Education
Subscription. The KnowledgePass Education Subscription provides access to certain educational offerings
provided by Kronos (the "KnowledgePass Content"). Customer recognizes and agrees that the
Knowledgel'ass Content is copyrighted by Kronos. Customer is permitted to make copies of the
KnowledgePass Content provided in *pdf form solely for Customer's internal use. Customer may not
disclose such KnowledgePass Content to any third party other than Customer's employees. Customer may
not edit, modify, revise, amend, change, alter, customize or vary the KnowledgePass Content without the
written consent of Kronos, provided that Customer may download and modify contents of training kits solely
for Customer's internal use.
7.6 Training Points. "'Training Points" are points which are purchased by Customer that may be redeemed
for an equivalent value of instructor -led training sessions offered by Kronos. Training Points may be redeemed
only during the Term but only prior to the date which is no more than 12 months after the date of the Order
Form pursuant to which the Training Points were acquired, after which time such Training Points shall expire
and be of no value. Training Points may not be exchanged.fdr other Kronos products or services.
7.7 framing Corpses. When Training Points or training sessions are set forth in an SSS, the SSS applies.
When Training Points or training sessions are not set forth in an SSS, as part of the Services, for each SaaS
application module included in the Services purchased by Customer, Customer's employees shall be entitled
Rev 1024201g
to attend, in the quantity indicated, the corresponding training courses set forth at:
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Participation in such training courses is limited to the number of seats indicated for the courses corresponding
to the modules forming a part of the Services purchased by Customer.
7.8 Technical Account Manager. Customers purchasing a Kronos Technical Account Manager ("TAM") as
indicated on the Order form shall receive the services of a dedicated, but not exclusive, TAM for one
production instance of the Software, Customer will designate up to two primary and three secondary backup
technical contacts ("Technical Contacts") to be the sole contacts with the TAM. Upon request, Customer
may designate a reasonable number of additional and/or backup Technical Contacts. Customer is required
to place all primary Technical Contacts through Kronos training for the Applications covered under this
Agreement at Customer's expense.
S. CUSTOMER CONTENT
Customer shall own all Customer Content, Kronos acknowledges that all of the Customer Content is deemed
to he the Confidential Information ot'Customer. Customer will ensure that all Customer Content conforms
with the terms of this Agreement and applicable law. Kronos and its Suppliers may, but shall have no
obligation to, access and monitor Customer Content from time to time to provide the Services and to ensure
compliance with this Agreement and applicable law, Customer is solely responsible for any claims related
to Customer Content and for properly handling and processing notices that are sent to Customer regarding
Customer Content.
9. EQUIPMENT
If Customer purchases or rents Equipment from Kronos, a description of such Equipment (model and
quantity), the applicable pricing, and delivery terms shall be listed on the Order Form,
9.1 Rented Equipment. The following terms apply only to Equipment Customer rents from Kronos:
(a) RemalTerin wid )Ygr tllity Period, The term of the F'quipment rental and the "Warranty Period" for
such Equipment shall run colenninously with the Term of the other Services provided under the Agreement.
(b) Immune. Customer shall insure the Equipment for an amount equal to tht: replacement value of
the Equipment for loss or damage by fire, theft, and all normal extended coverage at all times. No loss, theft
or damage after shipment ofthe. Equipment to Customer shall relieve Customer from Customer's obligations
under the Agreement.
(c) L{s{ rtiortlitenlagontil. Customer shall not make any alterations or remove the Equipment from the
place of original installation without Kronos' prior written consent. Kronos shall have the right to enter
Custorner's premises to inspect the Equipment during normal business hours. Kronos reserves the right, at
its sole discretion and at no additional cost to Customer, to replace any Equipment with newer or alternative
technology Equipment as long as the replacement Equipment at least provides the same level of functionality
as that being replaced.
(d) Ownurshi All Equipment shall remain the property of Kronos, All Equipment is, and at all times
shall remain, separate items of personal property, notwithstanding such Equipment's attachment to other
equipment or real property. Customer shall not sell or otherwise encumber the Equipment. Customer shall
furnish any assurances, written or otherwise, reasonably requested by Kronos to give lull effect to the intent
of terms ofthis paragraph (d).
(e) Equipmeal Support, Kronos shall provide to Customer the Equipment support services described
in Section 7.
(0 fturn ofl4lul3ntenl. Upon termination of the Agreement or the applicable Order Form, Customer
shall return, within thirty (30) days of the effective date of termination and at Customer's expense, the
Equipment subject to this Section 9. 1, Equipment will be returned to Kronos in the same condition as and
when received, reasonable wear and tear excepted. If Customer fails to return Equipment within this time
period, upon receiving an invoice from Kronos, Customer shall pay Kronos the then list price of the
unreturned Equipment.
9.2 Purchased A'qulpment. The following terms apply only to Equipment Customer purchases from Kronos;
(a) 11114 and WitI.r31J'.4y llyr�• When the Order Form indicates FOB — Shipping Point, title to the
Equipment passes to Customer upon delivery to the carrier; for all other shipping terms, title passes upon
delivery to Customer, The "Warranty Period" for the Equipment shall be for a period ol'90 days from
such delivery (unless otherwise required by law).
Rev. 10242018
(b) --Equipment Support. Kronos shall provide to Customer the Equipment support services
described in this Agreement if purchased separately by Customer as indicated on the applicable Order
Form. lf'purchased, Equipment support services have a term ofone (I) year commencing upon expiration
of the Warranty Period. Equipment support services will be automatically extended for additional one year
terms on the anniversary of its commencement date ("Renewal Date"), unless either party has given the
other thirty (30) days written notification of its intent not to renew. Kronos may change the annual support
charges for Equipment support services effective at the end of the initial one ( I ) year term or effective on
the Renewal Date, by giving Customer at least thirty (30) days prior written notification.
10. SERVICE LEVEL AGREEMENT'
Kronos shall provide the service levels and associated credits, when applicable, in accordance with the
Service Level Agreement attached hereto as Exhibit A and which is hereby incorporated herein by refbrence.
CUS'TOMER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY SERVICE OUTAGE OR
INTERRUP'T'ION OF '['HE SERVICES OR FAILURE BY KRONOS TO MEET THE" 1'LiRMS OF THE
APPLICABLE SERVICE LEVEL AGREEMENT, SHALL, BE THE REMEDIES PROVIDED IN
EXHIBIT A.
11. LIMITED WAItRANTY; DISCLAIM FRS OF WARRANTY
11.1 Kronos represents and warrants to Customer that the Applications, under normal operation as specified
in the Documentation and when used as authorized herein, will perform substantially in accordance with such
Documentation during the Term.
11.2 Kronos' sole obligation and Customer's sole and exclusive remedy for any breach of the foregoing
warranty is limited to Kronos' reasonable commercial efforts to correct the non -conforming Applications at
no additional charge to Customer. In the event that Kronos is unable to correct material deficiencies in the
Services arising during the Warranty Period, after using Kronos' commercially reasonable efforts to do so,
Customer shall be entitled to terminate the then remaining Tern of the Agreement as Customer's sole and
exclusive remedy. Kronos' obligations hereunder for breach of warranty are conditioned upon Customer
notifying Kronos of the material breach in writing, and providing Kronos with sufficient evidence of'such
non -conformity to enable Kronos to reproduce or verity the sarne.
11.3 Kronos warrants to Customer that each item of Equipment shall be free from defects in materials and
workmanship during the Warranty Period. In the event of a breach of this warranty, Customer's sole and
exclusive remedy shall be Kronos' repair or replacement of the deficient Equipment, al Kronos' option,
provided that Customer's use, installation and maintenance thereof have conformed to the Documentation
for such Equipment. This warranty is extended to Customer only and shall not apply to any Equipment (or
parts thereof) in the event of:
(a) damage, defects or malfunctions resulting from misuse, accident, neglect, tampering, (including
without limitation modification or replacement of any Kronos components on any boards supplied with the
Equipment), unusual physical or electrical stress or causes other than normal and intended use;
(b) failure of Customer to provide and maintain a suitable installation environment, as specified in the
published specifications for such Equipment; or
(c) malfunctions resulting from the use of badges or supplies not approved by Kronos.
EXCEPT AS PROVIDED FOIL IN THIS SECTION II, KRONOS HEREBY DISCLAIMS ALL
WARRANTIES, CONDITIONS, GUARANTIES AND REPRESENTATIONS RELATING TO THE
SERVICES, EXPRESS OR IMPLIED, ORAL, OR IN WRITING, INCLUDING WITHOUT LIMITATION
THE IMPLIED WARRAN'T'IES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE: AND NON -INFRINGEMENT, AND WI IETHER OR NOT ARISING TI IROUGH A COURSE OF
DEALING, INCLUDING, WIT'HOU'T' LIMITATION, ANY WARRANTY THAI' MAY OTHERWISE
ARISE PURSUANT TO ANY STAT'U'TE, CODE, COMMON LAW OR JUDICIAL DECISION. 'rHE
SERVICES ARE NOT GUARANTEED TO BE ERROR-FREL; Olt UNINTERRUPTED. EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT, KRONOS MAKES NO WARRANTIES OR
REPRESENTATIONS CONCERNING THE COMPATIBILITY OF THE SERVICES, THE SAAS
APPLICATIONS OR'THE EQUIPMENT NOR ANY RESULTS TO BE ACI HEVED THEREFROM.
12. DATA SECURI'T'Y
12.1 As part of the Services, Kronos shall provide those administrative, physical, and technical safeguards
for protection of the security, confidentiality and integrity of Customer data as described at:
Rev, 10242018
1 lei://wyvw,krunsts.t:uiri/�rct�l�/woe������ t /clot-,guidviittes.rtsitx
12.2 As between Customer and Kronos, all Personally Identifiable Data is Customer's Confidential
Information and will remain the property of'Customer. Customer represents that to the best of Customer's
knowledge such Personally Identifiable Data supplied to Kronos is accurate. Customer hereby consents to
the use, processing or disclosure of Personally Identifiable Data by Kronos and Kronos' Suppliers wherever
located only f'or the purposes described herein and only to the extent such use or processing is necessary for
Kronos to carry out Kronos' duties and responsibilities under the Agreement or as required by law.
12.3 Prior to initiation of the Services under the Agreement and on an ongoing basis thereafter, Customer
agrees to provide notice to Kronos of any extraordinary privacy or data protection statutes, rules, or
regulations which are or become applicable to Customer's industry and which could be imposed on Kronos
as a result of provision of the Services. Customer will ensure that: (a) the transfer to Kronos and storage of
any Personally Identifiable Dula by Kronos or Kronos' Supplier's data center is permitted under applicable
data protection taws and regulations; and, (b) Customer will obtain consents from individuals tar such
transfer and storage to the extent required under applicable laws and regulations.
13. INDEMNIFICATION
13.1 Kronos shall defend Customer and its respective directors, officers, and employees (collectively, the
"Customer Indernnflied Parties"), from and against any and all notices, charges, claims, proceedings,
actions, causes of action and suits, brought by a third party (each a "Claim") alleging that the permitted uses
of the Services infringe or misappropriate any United States or Canadian copyright or patent, and Kronos
will indemnify and hold harmless the Customer Indemnified Parties against any liabilities, obligations, costs
or expenses (including without limitation reasonable attorneys' fees) actually awarded to a third party as a
result of such Claim by a court of applicablejurisdiction or as a result of Kronos' settlement of'such a Claim.
In the event that a final injunction is obtained against Customer's use of the Services by reason of
infringement or misappropriation of such copyright or patent, or if in Kronos' opinion, the Services are likely
to become the subject of a successful claim ot'such infringement or misappropriation, Krotios, at Kronos'
option and expense, will use commercially reasonable efforts to (a) procure for Customer the right to continue
using the Services as provided in the Agreement, (h) replace or modify the Services so that the Services
become non -infringing but remain substantively similar to the affected Services, and if neither (a) or (b) is
commercially feasible, to (c) terminate the Agreement and the a granted hereunder after provision of a refund
to Customer of the Monthly Service Fees paid by Customer f'or the infringing elements of the Services
covering the period of their unavailability,
13.2 Kronos shall have no liability to indemnity or defend Customer to the extent the alleged infringement
is based on: (a) a modification of the Services by anyone other than Kronos; (b) use of the Applications other
than in accordance with the Documentation for such Service or as authorized by the Agreement; (c) use of
the Services in conjunction with any data, equipment, service or software not provided by Kronos, where
the Services would not otherwise itself be infringing or the subject of the claim; or (d) use ofthe Services by
Customer other than in accordance with the terms of the Agreement. Notwithstanding the Foregoing, with
regard to infringement claims based upon software created or provided by a licensor to Kronos or Suppliers,
Kronos' maximum liability will be to assign to Customer Kronos' or Supplier's recovery rights with respect
to such inti•ingement claims, provided that Kronos or Kronos' Supplier shall use commercially reasonable
efforts at Customer's cost to assist Customer in seeking such recovery from such licensor.
13.3 Customer shall defend Kronos, its Suppliers and their respective directors, officers, employees, agents
and independent contractors (collectively, the "Kronos Indemnified Parties") from and against any and all
Claims, and will indemnify and hold harmless tho Kronos Indemnified Parties against liabilities, obligations,
costs or expenses (including wilhout limitation reasonable atlorneys' fees), arising out or: (a) employment-
related claims arising put of CLiStomer's configuration of the Services; (h) Customer's modification or
combination of the Services with other services, software or equipment not Furnished by Kronos, provided that
such Customer modification or combination is the cause of such infringement and was not authorized by
Kronos; or, (c) a claim that the C imorner Content infringes in any manner any intellectual properly right of
any third party, or any of the Customer Content contains any material or information that is obscene,
defamatory, libelous, or slanderous violates any person's right of publicity, privacy or personality, or has
otherwise caused or resulted in any tort, injury, damage or harm to any other person. Customer will have
sole control of the defense of any such action and all negotiations for its settlement or compromise. Kronos
will cooperate fully at Customer's expense with Customer in the defense, settlement or compromise of any
such action.
RL!v 10242018
13.4 The Indemnified Parly(ies) shall provide written notice to the indemnifying party promptly after
receiving notice ofsuch Claim, If the defense of such Claim is materially prejudiced by a delay in providing
such notice, the purported indemnifying party shall be relieved from providing such indemnity to the extent
of the delay's impact on the defense, The indemnifying party shall have sole control of the defense of any
indemnified Claim and all negotiations for its settlement or compromise, provided that such indemnifying
party shall not enter into any settlement which imposes any obligations or restrictions on the applicable
Indemnified Parties without the prior written consent of the other party. The Indemnified Parties shall
cooperate fully, at the indemnifying party's request and expense, with the indemnifying party in the defense,
settlement or compromise of any such action. The indemnified party may retain its own counsel at its own
expense, subject to the indemnilying party's rights above,
14. LIMITATION OF LIABILITY
14.1 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMIiNT, KRONOS AND ITS
SUPPLIERS WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURIES CAUSED BY THE USE OF
]'HE SERVICES OR BY ANY ERRORS, DELAYS, INT'FRRUPTIONS IN TRANSMISSION, OR
FAILURES OF TI IE SERVICES.
14.2 - EXCEPT FOR KRONOS' INDEMNIFICATION OBLIGATIONS SE'f FORTH IN SECTION l3
ABOVE, THE TOTAL. ,AGGREGATE LIABILITY OF KRONOS Olt KRONOS' SUPPLIERS TO
CUSTOMER AND/OR ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT SHALL BE
L1MITFD TO DIRECTDAMAGES PROVEN BY CUS'T'OMER, SUCH DIRECT DAMAGES NOT TO
EXCEED AN AMOUNT EQUAL, TO THE TOTAL NET PAYMENTS RECEIVED BY KRONOS FOR
THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE,
IN WHICH SUCH CLAIM ARISES.
14,3 EXCEPT FOR KRONOR' INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 13
ABOVE, IN NO EVENT SHALL KRONOS OR KRONOS' SUPPLIERS, THEIR RESPECTIVE
AFFILIATES, SF'RVICE' PROVIDERS, OR AGENTS BE LIABLE TO CUSTOMER OR ANY TI [[RD
PAR'T'Y FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL Olt OTHER INDIRECT
DAMAGES OR [,'Olt ANY LOST OR IMPLJTLD PROFITS OR REVENUES, LOST DA'T'A OR COST OF
PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM DELAYS, NONDF,LIVERIES,
MTSDELIVERIES Olt SERVICES INTERRUPTION, HOWEVER CAUSED, ARISING FROM Olt
RELATED TO THE SERVICES OR TITE AGREEMENT, REGARDLESS OF THE LEGAL THEORY
UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF WARRANTY,
INDEMNIFICA'T'ION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND WHETHER
LIABILITY IS ASSER'T'ED IN CONTRACT, "FORT OR OTHERWISE, AND REGARDLESS OF
WHETHER KRONOS OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH
LIABILI'T'Y, LOSS OR DAMAGE.
14.4 - EXCEPT WITH RESPECT TO LIABILITY ARISING FROM KRONOS' GROSS NEGLIGENCE
Olt WILLFUL MISCONDUCT, KRONOS DISCLAIMS ANY AND ALL LIABILITY, INCLUDING
WITHOUT LIMITATION LIABILITY RELA'rED TO A BREACH OF DATA SECURITY AND
CONFIDENTIALITY OBLIGATIONS, RESULTING FROM ANY EXTERNALLY IN'T'RODUCED
HARMFUL PROGRAM (INCLUDING WITHOUT LIMITATION VIRUSES, TROJAN HORSES, AND
WORMS), CUS'TOMER'S CONTENT OR APPLICATIONS, THIRD PARTY UNAUTHORIZED
ACCESS OF EQUIPMENT, SAAS APPLICATIONS OR SYSTEMS, OR MACHINE ERROR.
15. CONFIDENTIAL INFORMATION
15.1 Each Party shall protect the Confidential Information ofthe other Party with at least the same degree of
care and confidentiality, but not less than a reasonable standard of care, which such Party utilizes for its own
information of similar character that it does not wish disclosed to the public. Neither Party shall disclose to
third parties the other Party's Confidential Information, or use it for any purpose riot explicitly authorized
herein, without the prior written consent of the other Party. The obligation of confidentiality shall survive
for 5 years after the return of such Confidential Information to the disclosing party or 5 years after the
expiration or termination of the Agreement, whichever is later, as applicable, Notwithstanding anything
herein to the contrary, each party acknowledges and agrees that all trade secrets shall be safeguarded by a
receiving party as required by this Agreement for so long as such information remains a trade secret pursuant
to applicable law,
15,2 Notwithstanding the lbregoing, a party may disclose Confidential Information to the extent required:
(a) to any subsidiary or affiliate of such Party, or (b) to any consultants, contractors, and counsel who have a
10
Rev.10242018
need to know in connection with lite Agreement and have executed a non -disclosure agreement with
obligations at least as stringent as this Section 15, or (c) by law, or by a court or governmental agency, or if
necessary in any g rocneding to establish rights or obligations under the Agreement; provided, the receiving
party shall, unless legally prohibited, provide the disclosing party with reasonable prior written notice
sufficient to permit the disclosing party an opportunity to contest such disclosure, If a party commits, or
threatens to commit, a breach of this Section 15, the other party shall have the right to seek injunctive relief'
from a court of competent jurisdiction.
15.3 This Agreement imposes no obligation upon either Party with respect to the other Party's Confidential
Information which the receiving Party can establish: (a) is or becomes generally known through no breach of
the Agreement by the receiving party, or (b) is already known or is independently developed by the receiving
party without use of or reference to the Confidential Information.
16. EXPORT
Customer understands that any export ofthe Equipment may require an export license and Customer assumes
lull responsibility for obtaining such license. Customer must obtain Kronos' prior written consent before
exporting the Equipmerd,
17. GENERAL
17.1 This Agreement shall be governed by and construed in accordance with the laws of the state, province
and country in which Kronos is incorporated without regard to arty conflict of law provisions. The parties
waive the application of the United Nations Commission on International Trade Law and United Nations
Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of the
Agreement and waive and 'opt out" ot'the Uniform Computer Information Transactions Act (UCITA), or
such other similar law,
17.2 The invalidity or illegality of any provision of the Agreement shall not affect the validity of any other
provision. The parties intend for the remaining unaffected provisions to remain in full force and effect.
17.3 Customer shall not assign the Agreement or the rights to use the Services without the prior written
consent of Kronos and any purported assignment, without such consent, shall be void.
17.4 Neither Party shall be responsible for any failure to perform or delay in performing any of its obligations
under this Agreement (other than a failure to comply with payment obligations) where and to the extent that
such failure or delay results f1'onl art unforesecuble event beyond a party's reasonable control, including but
not limited to, acls of war; acts of nature; earthquake; flood; embargo; riot; sabotage; labor shortage or
dispute; changes in government ca les, ordinances, laws, rules, regulations or restrictions; failure of the
Internet; terrorist acls; failure of dalu, products or services controlled by any third party, including; the
providers of communications or network services; utility power failure; material shortages or unavailability
or other delay in delivery nal resulting ffum the responsible party's failure to timely place orders therefor, or
lack of or delay in transportation (each a" Force Majeure Event").
17.5 All notices given under the Agreement shall be in writing and sent postage pre -paid, if to Kronos, to the
Kronos address on the Order form, or if to Customer, to the billing address on the Order form.
17.6 No action, regardless of form, may be brought by either party more than two (2) years after the cause
of action has arisen.
17.7 The section headings herein are provided for convenience only and have no substantive effect on the
construction of the Agreement.
17.8 The parties agree that if the Agreement is accepted by the parties and that acceptance is delivered via
fax or electronically delivered via email or the internet it shall constitute a valid and enforceahle agreement.
17.9 This Agreement and any information expressly incorporated by reference herein, together with the
applicable Order Form, constitute the entire agreement between the parties for the Services described herein
and supersede all prior or contemporaneous representations, negotiations, or other communications between
the parties relating to the subject maller ofthis Agreement. This Agreement may be amended only in writing
signed by authorized representatives of both parties. Customer understands and acknowledges that while
Kronos may disclose to customers certain confidential information regarding general Service or product
development direction, potential future Services, products or product enhancements under consideration,
Customer is not entitled to any Services, products or product enhancements other than those contained on the
Order Eorrn. Customer has not relied on the availability of any luture version of the Services (including SaaS
Applications or equipment) idwitihed on an Order form, nor any other future product in executing the
Agreement.
Rev 10242018
CUSTOMER AGREES TO THESE TERMS AND CONDITIONS FOR ALL ORDER FORMS FOR THE
SERVICES. THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF
CUSTOMER REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO CONTRACTUALLY BIND
CUSTOMER,
Customer A
Dated: S _ 12'_ tot
Title: (I
Kronos Incorporated
Dated:
Name:
Title;
Approve! M to Fane: ,
JA ICED. RICH
C1 tt
ATTEST:
Kr
Inc
nUswzoiy i:ui Nnn1F1rR M. RRAIQI,p
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COSIgn
12
Rev.10242018
EXHIBIT A
SERVICE LEVEL AGREEMENT (SLA)
Service Level Agreement: The Services, in a production environment, are provided with the service levels
described in this Exhibit A. SLAB are only applicable to production environments. SLAs will be available
upon Customer's signature of Kronos' Go Live Acceptance Form for Customer's production environment.
99.75% Application Availability
Actual Application Availability % (Monthly Minutes (MM) minus Total Minutes Not Available (TM))
multiplied by 100) and divided by Monthly Minutes (MM), but not including Fxcluded Events
Service Credit Calculation: An Outage will be deemed to commence when the Applications are unavailable
to Customer in Customer's production environment hosted by Kronos and end when Kronos has restored
availability of the Applications. Failure to meet the 99.75% Application Availability SLA, other than for
reasons due to an Excluded Event, will entitle Customer to a credit as follows:
,Actual Application Availability 1%
'as measured in a calendar month
Service Credit to be applied to Customer's
Inontlify invoice for the affected month
<99.75% to 98.75%
10%
•98.75% to 98,25%
15%
<98.25% to 97.75%
25%
<97.75 to 96.75%
35%,
<96.75
50%
"Outage" means the accumulated time, measured in minutes, during which Customer is unable to access the
Applications for reasons other than an Excluded Event.
"Excluded Event" means any event that results in an Outage and is caused by (a) the acts or omissions of
Customer, its employees, customers, contractors or agents; (b) the failure or malfunction of equipment,
applications or systems not owned or controlled by Kronos, including without limitation Customer Content,
failures or malfunctions resulting from circuits provided by Customer, any inconsistencies or changes in
Customer's source environment, including either intentional or accidental connections or disconnections to
the environment; (c) Force Majeure events; (d) expected downtime during the Maintenance Periods described
below; (e) any suspension ofthe Services in accordance with the terms of the Agreement to which this Exhibit
A is attached; (t) the unavailability of required Customer personnel, including as a result of railum to provide
Kronos with accurate, current contact information; or (g) using an Application in a manner inconsistent with
the Documentation for such Application.
"Maintenance Period" means scheduled maintenance periods established by Kronos to maintain and update
the Services, when downtime may be necessary, as further described below. The Maintenance Period is used
For purposes of the Service Credit Calculation; Kronos continuously maintains the production environment
on a 240 basis to reduce disruptions.
Customer Specific Maintenance Period
I . Customer will choose one of the following time zones lbr their Maintenance Period:
a. United States Eastern Standard Time,
b. GMT/UTC,
c. Central European Time (CET) or
d. Australian Eastern Standard Time (REST).
13
Rev 10242018
2. Customer will choose one of the following days of the week for their Maintenance Period;
Saturday, Sunday, Wednesday or Thursday,
3. Kronos will use up to six (6) hours in any two (2) consecutive rolling months (specifically;
January and February; March and April; May and June; July and August; September and October;
November and December) to perform Customer Specific Maintenance, excluding any customer
requested Application updates. Downtime in excess of these six (6) hours will be deemed to be an
Outage.
4. Customer Specific Maintenance will occur between 12am-6am during Customer's selected time
zone.
5. Excluding any customer requested Application updates, Kronos will provide notice for planned
downtime via an email notice to the primary Customer contact at least seven (7) days in advance
of any known downtime so planning can be facilitated by Customer.
6. Customer Specific Maintenance Windows also include additional maintenance windows mutually
agreed upon by Customer and Kronos.
7. In absence of instruction from Customer, Kronos will by default perform Maintenance in the time
zone where the Data Center is located,
Non -Customer Specific Maintenance Period
Kronos anticipates non -Customer Specific Maintenance to be performed with no or little (less than
three hours per month) Customer downtime. If for any reason non -Customer Specific
Maintenance requires downtime, Kronos will provide as much notice as reasonably possible of the
expected window in which this will occur. Downlime in excess of three (3) hours per month for
Non -Customer Specific Maintenance will be deemed to be an Outage.
"Monthly Minutes (MM)" means the total time, measured in minutes, of a calendar month commencing at
12:00 am of the first day of such calendar month and ending at I t:59 pm of the last day of such calendar
month.
"Total Minutes Not Available (TM)" means the total number of minutes during the calendar month that the
Services are unavailable as the result of an Outage.
Reporting and Claims Process; Service Credits will not be provided if: (a) Customer is in breach or default
under the Agreement at the time the Outage occurred; or (b) the Outage results from an Excluded Event.
Kronos will provide Customer with an Application Availability report on a monthly basis for each prior
calendar month. Within sixty (60) days of receipt of such report, Customer must request the applicable
Service Credit by written notice to Kronos, Customer waives any right to Service Credits not requested
within this time period. All performance calculations and applicable Service Credits are based on Kronos
records and data unless Customer can provide Kronos with clear and convincing evidence to the contrary.
The Service Level Agreements in this Exhibit, and the related Service Credits, apply on a per production
environment basis. For the avoidance of doubt, Outages in one production environment may not be added
to Outages in any other production environment for purposes of calculating Service Credits.
Customer acknowledges that Kronos manages its network traffic in part on the basis of Customer's utilization
of the Services and that changes in such utilization may impact Kronos' ability to manage network traffic.
Therefore, notwithstanding anything else to the contrary, if Customer significantly changes its utilization of
the Services than what is contracted with Kronos and such change creates a material and adverse impact on
the traffic balance of the Kronos network, as reasonably determined by Kronos, the parties agree to co-
operate, in good faith, to resolve the issue,
14
Itcv 10242018
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EXHIBIT C
NOTE: The City of Lodi is now using the online insurance program PINS Advantage. Once you have been awarded a
contract you will receive an email from the City's online insurance program requesting you to forward the email to your
insurance provider(s) to submit the required insurance documentation electronically
Insurance Requirements for IT Vendor Services
Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages
to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the
Contractor, his agents, representatives, employees or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including
products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than
$1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this
project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto or if Contractor has no owned autos, then hired, and non -
owned autos with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit
of no less than $1,000,000 per accident for bodily injury or disease.
4. Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall
be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but
not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright,
trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release
of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for
breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to
respond to these obligations.
Other Insurance Provisions:
(a) Additional Named Insured Status
The City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers are to be covered
as additional insureds on the CGL and auto policy with respect to liability arising out of work or operations performed by or on
behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General
liability coverage can be provided in the form of an endorsement to the Contractor's insurance (at least as broad as ISO Form
CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a
later edition is used
(b) Primary and Non -Contributory Insurance Endorsement
The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. For
any claims related to this contract, the Contractor's insurance coverage shall be primary coverage at least as broad as ISO CG
20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained
by the Entity, its officers, officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute
with it.
(c) Waiver of Subrogation Contractor hereby grants to City of Lodi a waiver of any right to subrogation which any insurer of said
Contractor may acquire against the City of Lodi by virtue of the payment of any loss under such insurance. Contractor agrees to
obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether
or not the City of Lodi has received a waiver of subrogation endorsement from the insurer
NOTE: (1) The street address of the CITY OF LODI must be shown along with (a) and (b) and (c) above: 221 West Pine Street,
Lodi, California, 95240; (2) The insurance certificate must state, on its face or as an endorsement, a description of the proiect
that it is insuring.
(d) Severabflity of Interest. Clause
The term "insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to
incrpg �`��'�' comp-ny s is Tly Unger tf'ie Contractors commeraia geT""'nara7 abiRy ani3-aufc Ti Iiia �i'Y28Y cies.
(e) Notice of Cancellation or Change in Coverage Endorsement
This policy may not be canceled nor the coverage reduced by the company without 30 days' prior written notice of such
cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240.
(f) Continuity of Coverage
All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days prior to the expiration
of each insurance policy, Contractor shall furnish a certificate(s) showing that a new or extended policy has been obtained which
meets the minimum requirements of this Agreement. Contractor shall provide proof of continuing insurance on at least an annual
basis during the Term. If Contractor's insurance lapses or is discontinued for any reason, Contractor shall immediately notify the
City and immediately obtain replacement insurance. Contractor agrees and stipulates that any insurance coverage provided to the
City of Lodi shall provide for a claims period following termination of coverage which is at least consistent with the claims period or
statutes of limitations found in the California Tort Claims Act (California Government Code Section 810 et seq.).
(g) Failure to Comolv
If Contractor fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage, the City may obtain
the insurance. Contractor shall reimburse the City for premiums paid, with interest on the premium paid by the City at the maximum
allowable legal rate then in effect in California. The City shall notify Contractor of such payment of premiums within thirty (30) days
of payment stating the amount paid, the name(s) of the insurer(s), and rate of interest. Contractor shall pay such reimbursement
and interest on the first (1st) day of the month following the City's notice. Notwithstanding any other provision of this Agreement,
if Contractor fails or refuses to obtain or maintain insurance as required by this agreement, or fails to provide proof of insurance,
the City may terminate this Agreement upon such breach. Upon such termination, Contractor shall immediately cease use of the
Site or facilities and commence and diligently pursue the removal of any and all of its personal property from the site or facilities.
(h) Verification of Coverage
Consultant shall furnish the City with a copy of the policy declaration and endorsement page(s), original certificates and
amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates
and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required
documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City reserves the right to
require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at
anytime. Failure to exercise this right shall not constitute a waiver of the City's right to exercise after the effective
date.
(i) Self -Insured Retentions
Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to provide proof of ability
to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall
provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
Q) Insurance Limits
The limits of insurance described herein shall not limit the liability of the Contractor and Contractor's officers, employees, agents,
representatives or subcontractors. Contractor's obligation to defend, indemnify and hold the City and its officers, officials,
employees, agents and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement
in the Agreement for Contractor to procure and maintain a policy of insurance.
(k) Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and
Consultant shall ensure that City is an additional insured on insurance required from subcontractors
(1) Claims Made Policies
If any of the required policies provide coverage on a claims -made basis:
1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the
contract of work.
3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior
to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after
completion of contract work.
(m) Qualified Insurer(s)
All insurance required by the terms of this Agreement must be provided by insurers licensed to do business in the State of
California which are rated at least "A-, VI" by the AM Best Ratings Guide, and which are acceptable to the City. Non -admitted
surplus lines carriers may be accepted provided they are included on the most recent list of California eligible surplus lines
insurers (LESLI list) and otherwise meet City requirements.
Page 2 1 of 2 pages Risk: rev. 3/1/2018
RESOLUTION NO. 2022-155
A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE
CITY MANAGER TO EXECUTE AMENDMENT NO. 1 TO THE AGREEMENT
WITH KRONOS INCORPORATED, A MASSACHUSETTS CORPORATION,
FOR CLOUD -BASED TIME MANAGEMENT AND SCHEDULING SOFTWARE
WHEREAS, the Lodi Fire Department has utilized Telestaff for time management and
scheduling shifts since 2007; and
WHEREAS, in 2019, the City of Lodi entered into a contract with Kronos Incorporated for
a three-year term with two one-year options to extend; and
WHEREAS, staff recommends utilizing the two one-year options to extend the contract, in
the amount of $14,250 per year.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize
the City Manager to execute Amendment No. 1 to the Agreement for cloud -based time
management and scheduling software with Kronos Incorporated to utilize two one-year extension
options, in the amount of $28,500; and
BE IT FURTHER RESOLVED, pursuant to Section 6.3q of the City Council Protocol
Manual (Res. No. 2019-223), the City Attorney is hereby authorized to make minor revisions to
the above -referenced documents) that do not alter the compensation or term, and to make
clerical corrections as necessary.
Dated: June 15, 2022
I hereby certify that Resolution No. 2022-155 was passed and adopted by the City Council
of the City of Lodi in a regular meeting held June 15, 2022 by the following vote:
AYES: COUNCIL MEMBERS — Hothi, Khan, Kuehne, and Mayor Chandler
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — Nakanishi
ABSTAIN: COUNCIL MEMBERS — None
OLIVIA NASHED
City Clerk
2022-155