Software Renewal Agreement - Kronos, Inc.

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SECTION E KRONOS WORKFORCE READY* - SOFTWARE AS A SERVICE (SAAS) TERMS AND CONorMNS Custorner and Kronos agree that the to" and condldors set forth in ills Setdforr E shall apply to the Kronos software application programs and related services and materials (including applicable documentation) and equipment (if any) specified on an Order Form for Workforce Resdy(collectivety, the 'Services'). The Services described on an Order Forst ohms be delivered by means of Customer's permitted access to the password protected wstorner area of a Kronos websits. 1. TERM 1.1 The Services shall be deemed to start on the earlier of: a) ninety (90) days from Kronos' racelpt of the relevant order Farm; or, b) the date Customer Is authorized to 'go live' with the Services for production purposes, (the "Start Datal, and shall continue indefinitely on a month -to• month basis until terminated In accordance with the provisions hereof (the 'Term'). Customer acknowledges that execution of separate third party agreements may be required In order for Customer to 'go live" with certain add -on features or functionality, including tax filing services ("Add -on Features', as Identified by Kronor on the Order Form. 1.2 Customer may terminate the Services or the Agreement for convenience upon thirty (30) days prior written notice, 1.3 Either party may suspend or terminate the Services or the Agreement upon a malerfal breach of the Agreement by the other party It such breach is not cured within fifteen (15) days after receipt of written notice. Notwithstanding the foregoing, Kronos may suspend or terminate the Services or the Agreement Immediately upon notice In the event of any Customer breach of Sections 3 (License to Use), 4 (Acceptable Use), or Section A.4 (Confidontlal Information), below. 1.4 in the event that either party becorrrea Insolvent, makes a general assignment for the benefit of creditors, is adjudicated a bankrupt or insolvent, commences a cake under applicable bankruptcy laws, files a petition seeking reorganization, the other party may request adequate assurances of future performance. Fallure to comply with such request within ten (10) days of delivery of the request shall entitle the requesting party to terminate the Agreement Irrrtedlately upon written nonce to the other. 1.S If the Agreement Is terminated for any reason: (a) Customer shall pay Kronos within thirty (30) days ail fees accrued for the Services prior to the date of termination, provided that If Customor terminates Kronos for material breach of the Agreement, Kronos shall be responsible to refund to Customer unused pro -paid service fees, if any; (b) Customer's right to access and use the Servkms shall be revoked and be of no further force or affect; (0) Within fifteen (15) days of termination Customer will rehieve Customers historical data In accordance with previously established system access procedures and applicable state and federal taws. After such bore period, Kronos shall have no further oblkgatlon to store antVor make available Customers historical data and may delete same. If Customer requires additional data conversion services from Kronos, these services may be contracted from Kronos at Kronos' then published rates. (d) Customer agrees to tknety return all Kronos-provkted materials related to the Services to Kronos at Customer's expense or, alternatively, upon prior written approval of Kronos, provide Kronos with an officer's certification of the destruction thereof; and (a) all provisions In the Agreement, which by their nature are Intended to survive termination, shall so survive. 2. FEES AND PAYMENT 2.1 In Consideration of the delivery of the Services, Customer shall pay Kronos the Setup Fees, the Monthly Service Feas and any additional one tine, set-up or recurring fees, all as defined on the Order Form. All fees payable for the Services shall be sent to the address specified on the Kronos invoke. Unless otherwise Indicated on an Order Form, payment terms for all items except the Setup Fees shag be net upon receipt of invoice, Except as expressly set forth In this Section E. all amounts paid to Kronos are nonrefundable. 2.2 The Setup Fees shall be invoked upon execution of the Order and shall be due net 30 days following date of Invoice. Customer acknowledges that setup fees may be charged to Customer by third parties for Add -on Features, Monthly Servics fees shag be based on monthly periods that begin on the Start fate. Monthly Service Fees shag include fees for Equipment rental, if any, as described in Section B below. Monthly Service Fees for Services added on or before the 1 e day of a given month will be charged for that full monthly period and each monthly period of the Term thereafter, Monthly Service Fees for Services added after the I day of a given month will begin to accrue as of the it day of the following month and W be charged for each monthly period of the Term thereafter. Monthly Service Fees shall be Invoiced promptly following the and of the calendar month In which the Monthly Service Fear were accrued, Kronos will monitor CuatorrWs 'Usage of the Services (as defined below) in order to calculate the Usage portion of the Monthly Service Fees to be charged. Usage of the Services, depending on applicable features, components, or services, shall be priced as tdeaff4d on the order Form either on a: (a) per month basis; (b) per active employee (heraln 'Active Employee"} per month usage basis; or, (c) per transactkrn basis (e.g_* pay statement). For purposes of the Agreement, an employee shall be deemed an Active Employee during any applicable bitting period if through the Services: (1) time has been entered for such employee; (ti) records have been included for such employee for the purpose of processing payroll; (III) records have been Included for such employee within an Importlexport process; (tv) such employee has accessed the Services, regardless of the purpose; (v) benefit time has been accrued for such employee; (VI) human resource reporting has been pefforred for or on such employee; or, (vti) such employee has been marked as an `Active" status during the period. 2.3 Customer agrees that except in those circumstances In which Customer is entitled to invoke the termination for cause provision set forth in Section 1.3 above, In consideration of Kronos' delivery of the Services on a variable fee basis, Customer agrees to pay Kronos each month during the Term In which charges accrue no less than the minimum monthly fees ('Minimum Monthly Fees") as Identified on the Order Form. The Minimum Monthly Fees shalt be calculated by Kronos based on Customers anticipated monthly Usage of the Services plus Equipment rental fees, If any. In the event that Customer does not reach the anticipated Usage upon which the Minimum Monthly Fees was based for any given month during the Term, Customer shall remain responsible for paying the Minimum Monthly Fees for that month. If an Order Form or the Agraement is suspended by Kronos for non-payment or otherwise terminated by Kronos for cause, Customer shall remain liable to pay the applicable Minimum Monthly Fees rip to and Including the last day of the month in which the effective date of termination occurs, 2-4 If any amount owing under this or any other agreement for Services is 30 or more days overdue, Kronos may, without limiting Its other rights and remedies, accelerate unpaid The obligations under such agreements to that all such obligations become Immediately due and payable, and suspend Services until such amounts are paid In full. Kronos wdl provide at least 7 days' prior notice that Customer's account is overdue tmfors suspending Services. 2.5 Deleted Intentionally, 25