FY2025-38 Authorization To Purchase An Electronic Time And Attendance Solution With TimeClock Plus, LLC (TCP) In The Amount Not To Exceed $25,000CONTRACTS TRANSMITTAL FORM
RETENTION SCHEDULE: CL-09 CONTRACTS
Records related to obligations under contracts, leases, and other agreements between the Borough and
outside parties, successful bids, and proposals. Active records are kept by the corresponding department.
Apply retention (plus 4 years) once contract or agreement expires, or once product is procured. Apply retention
(plus 25 years) for agreements that involve real property.
DATE: 12/20/2024
DEPARTMENT: Manager
REQUESTED BY: Aimee Williams
CONTRACT NO.:
VENDOR OR SERVICE PROVIDER: Timeclock Plus
CONTRACT TITLE: Authorization to Purchase An Electronic Time and Attendance Solution
Administrative contracts are contracts approved by the manager within the spending authority
allowed by code. Assembly approved contracts are beyond the manager's spending authority and
require approval by the Assembly during a meeting.
APPROVED BY: Assembly
TYPE OF CONTRACT: Procurement
DATE OF APPROVAL: 12/19/24
PROVIDE DETAILS FOR ANY AUTOMATIC RENEWALS OR EXTENSIONS BELOW:
none
EXPIRATION DATE:
PURGE DATE: 12/18/2029
If there is no expiration/purge date, enter 9999 as the year for open-ended contracts AND explain the
process below on how or when it should be flagged for review.
FILL OUT BELOW IF THE RECORD AMENDS, EXTENDS, IS A CHANGE
ORDER TO A CONTRACT, OR IS AN ADDENDUM TO A CONTRACT
DATE:
CONTRACT NO.:
APPROVED BY: Select One
REQUESTED BY:
CATEGORY: Select One
TYPE OF CONTRACT: Select One
PROVIDE DETAILS FOR ANY AUTOMATIC RENEWALS OR EXTENSIONS BELOW:
EXPIRATION DATE:
PURGE DATE:
If there is no expiration/purge date, enter 9999 as the year for open-ended contracts AND explain the
process below on how or when it should be flagged for review.
Y:\U - RECORDS\FORMS\20240802 Contracts Transmittal Form.docx Rev. 08/02/2024
icR
TCP Services Agreement
THIS TCP SERVICES AGREEMENT (the "Agreement") is entered into as of
December 30, 2024 ("Effective Date"), by and between TimeClock Plus, LLC, a
Delaware limited liability company with its principal office located at 1 Time Clock Drive,
San Angelo, TX 76904 ("TCP"), and Kodiak Island Borough , with its principal office
located at 710 Mill Bay Rd Rm 208, Kodiak, AK 99615 ("Client").
WHEREAS TCP and Client (the "Parties") desire to enter into this Agreement for the
provision of hosted services by TCP to Client, as provided herein.
NOW, THEREFORE, in reliance on the mutual covenants, promises, representations,
and agreements set forth herein, the Parties agree as follows:
Definitions.
1.1 "Active License" means an Employee or Designated User that has not been
marked as either terminated or suspended within TCP Services for whom Client is
required to pay a fee under this Agreement.
1.2 "Affiliate" means any parent or subsidiary corporation, and any corporation
or other business entity controlling, controlled by, or under common control with a Party.
1.3 "Biometric Data" means any information based on an individual's retina or
iris scan, fingerprint, voiceprint, or scan of hand or face geometry, which is used to identify
an individual, regardless of how it is captured, converted, stored, or shared.
1.4 "Client Data" means all of Client's data processed or stored by or
transmitted to TCP in connection with the TCP Services, including, without limitation, all
Personal Data contained therein.
1.5 "Designated User" means an individual Employee who is authorized by
Client to access the administrative features of the TCP Services, and whose Personal
Data may be processed or stored by or transmitted to TCP in connection with the TCP
Services.
1.6 "Employee" means Client's individual employee, manager, administrator,
worker, consultant, substitute, or contractor.
1.7 "Hardware Support and Maintenance Agreement' means any agreement
that extends services to current TimeClock Plus terminals, clocks, and biometric devices,
and maintenance releases for related products purchased or licensed by the Client from
TCP or a registered reseller, as applicable.
1.8 "Initial Term" has the meaning set forth in Section 10.
TCP Services Agreement I wl 12.11.24 1
1.9 "Monthly License Fee" means TCP's then current fees applicable for each
of Client's Active Licenses based on the aggregated Permissions to access and use the
TCP Services measured over the course of each calendar month, as outlined on an
invoice or Order Form. This fee may be prorated during the first month of the Initial Term
and prorated for the last month of the Initial Term.
1.10 "Order Form" means a written document, including, but not limited to, a TCP
issued invoice, a TCP issued order form, or a Client issued purchase order, which has
been mutually agreed upon and executed by the Parties for ordering products and/or
services, and which expressly incorporates the terms of this Agreement.
1.11 "Permissions" means the permission(s) granted to Client's Employees to
access features within TCP Services, as outlined on an invoice or Order Form.
Permissions are applied within the TCP Services by Client's Designated Users.
1.12 "Personal Data" means any information that identifies, relates to, describes,
is reasonably capable of being associated with, or could reasonably be linked, directly or
indirectly, with a particular Employee or Designated User.
1.13 "Privacy Policy" means TCP's Global Data Privacy Policy located at
https://www.tcpsoftware.com/legal, as updated from time to time.
1.14 "Service Level Agreement" means the Service Level Agreement that serves
as an addendum to this Agreement. The Service Level Agreement is located at
https://www.tcpsoftware.com/legal, as updated from time to time.
1.15 "Subprocessor' means any third -party entity that processes Personal Data
on behalf of TCP and to which TCP discloses Personal Data for a business purpose
pursuant to a written contract, provided that the contract prohibits such entity from
retaining, using, or disclosing the Personal Data for any purpose other than for the specific
purpose of performing the services identified in such contract.
1.16 "Supported Hardware" means any hardware purchased or leased from TCP
that is coverable under a Hardware Support and Maintenance Agreement located at
https://www.tcpsoftware.com/legal, as updated from time to time.
1.17 "TCP Services" means the TCP software application(s) hosted by TCP in
accordance with TCP's then -current hosting environment, any associated documentation,
and any ancillary services described in this Agreement or an Order Form.
1.18 "TCP Technology" means the computer hardware, software, and other
tangible equipment and intangible computer code contained therein used by TCP in the
provision of the TCP Services.
1.19 "Term" has the meaning set forth in Section 10.
TCP Services Agreement I wl 12.11.24 2
1.20 "Use Fees" means the fees set forth on the applicable invoice or Order
Form, including, but not limited to, Monthly License Fees and Hardware Support and
Maintenance Agreement Fees.
2. Delivery of Services.
2.1 TCP Services. Subject to the terms and conditions of this Agreement and
the Privacy Policy, TCP grants to Client, its Affiliates and their Designated Users a limited,
non -transferable (except in compliance with Section 22), nonexclusive right and
subscription license to access and use the TCP Services during the Term only for the
internal business purposes of processing, storing, and maintaining Client Data. TCP shall
provide to Client the TCP Services during the Term in accordance with the terms and
conditions of this Agreement, the Privacy Policy, the Service Level Agreement, the
Hardware Support and Maintenance Agreement (if applicable), and any additional terms
outlined in an Order Form.
2.2 Client Responsibilities. Client's use of the TCP Services is subject to the
terms of this Agreement, the Privacy Policy, the Service Level Agreement, the Hardware
Support and Maintenance Agreement (if applicable), and any additional terms outlined in
an Order Form. The aforementioned documents are available to view at
hftp://www.tcpsoftware.com/legal.
2.2.1 Access. Client is responsible for maintaining the confidentiality of
Client's account and password and for restricting access to its computer systems, and
Client agrees to accept responsibility for all activities that occur under Client's account or
password, including but not limited to any acts or omissions by Designated Users. Client
shall inform each Designated User of the terms and conditions governing such
Designated User's use of the TCP Services as set forth herein and shall cause each
Designated User to comply with such terms and conditions.
2.2.2 Restrictions on Use. Client acknowledges and agrees that Client will
not use the TCP Services for the benefit of any third party. Client agrees not to, not to
attempt to, nor allow any third party to: (i) use the TCP Services in any manner that could
damage, disable, overburden, or impair TCP's servers or networks or interfere with any
other party's use and enjoyment of the TCP Services; (ii) attempt to gain unauthorized
access to any services, user accounts, computer systems, or networks through hacking,
password mining, or any other means; (iii) copy, distribute, rent, lease, lend, sublicense,
transfer the TCP Services, make the TCP Services available to any third party, or use the
TCP Services on a service bureau or time sharing basis, (iv) decompile, reverse engineer,
or disassemble the TCP Services or otherwise attempt to reconstruct or discover any
source code, underlying ideas, algorithms, file formats, or programming interfaces of the
TCP Services, (v) create derivative works based on the TCP Services; (vi) modify,
remove, or obscure any copyright, trademark, patent, or other notices or legends that
appear on the TCP Services or during the use and operation thereof; (vii) publicly
disseminate performance information or analysis (including benchmarks) relating to the
TCP Services; or (viii) use the TCP Services in a manner which violates or infringes any
laws, rules, regulations, third party intellectual property rights, or third party privacy rights.
TCP Services Agreement I wl 12.11.24 3
Client may not use any automated means, including agents, robots, scripts, or spiders to
access or manage the TCP Services, except solely to the extent as may be specifically
enabled and authorized by TCP in writing. TCP may take any legal and technical
measures to prevent the violation of this provision and to enforce this Agreement.
2.3 Third Party Services.
2.3.1 Client may require the TCP Services to interoperate with platforms
or other online services operated by third parties ("Third -Party Platforms") pursuant to an
agreement between TCP and the operators of such Third -Party Platforms, an agreement
between Client and the operators of such Third -Party Platforms, or through application
programming interfaces ("APIs") or other means of interoperability which are generally
made available by such operators.
2.3.2 As applicable, Client hereby grants TCP the limited right to access
such Third -Party Platforms with Client's credentials and on behalf of the Client in
connection with the performance of the TCP Services. Client acknowledges and agrees
that TCP's agreements with the operators of such Third -Party Platforms and the terms
governing the use of APIs may be modified, suspended, or terminated at any time, and
TCP shall have no liability with respect to any such modification, suspension, or
termination. Client is responsible for ensuring that its use of the TCP Services in
connection with any Third -Party Platform, and TCP's access to such Third -Party
Platforms on Client's behalf, complies with all agreements and terms applicable to such
Third -Party Platform.
2.4 Client Data.
2.4.1 General. Client hereby grants TCP a worldwide, royalty -free, non-
exclusive, limited license to use, host, copy, transmit, display, modify, and create
derivative works of Client Data for the express purpose of providing the TCP Services.
Client acknowledges and agrees that it will determine the means and purposes of
processing Client Data and that TCP acts solely as a service provider that processes
Client Data on behalf of and at the direction of Client for the sole purpose of performing
the TCP Services under this Agreement. Client is responsible for ensuring that all
Designated Users who provide instructions to TCP on Client's behalf are authorized.
Client shall have sole responsibility for the accuracy, quality, content, legality, and use of
Client Data and the means by which any Personal Data is obtained from Designated
Users and Employees and transferred to TCP, and Client is solely responsible for any
transfer of Personal Data to any third -party data controller or data processor (e, g., human
resources or payroll application), and TCP shall have no liability in connection therewith.
Client agrees to implement data protection -related procedures that will not be less
protective than those imposed on TCP by this Agreement and the Privacy Policy.
2.4.2 Restrictions on TCP's Processing of Client Data. TCP is expressly
prohibited from processing any Client Data for any purpose other than for the specific
purpose of performing the TCP Services unless requested by Client or required by
applicable law. TCP is prohibited from selling Personal Data under any circumstances
TCP Services Agreement I wi 12.11.24 4
and for any purpose. No other collection, use, disclosure, or transfer (except to
Subprocessors in accordance with Section 22) of Client Data is permitted without Client's
express prior written instruction. TCP acknowledges and agrees that it understands and
will comply with each of the restrictions and obligations set forth in this Section 2.4.2.
2.4.3 Subprocessors. TCP has appointed Subprocessors for the purpose
of providing data hosting and security services. Client acknowledges and agrees that
Subprocessors may process Client Data in accordance with the terms of this Agreement,
the Privacy Policy and any Order Form. TCP's agreements with its Subprocessors
impose data protection -related processing terms on such Subprocessors that are no less
protective than the terms imposed on TCP in this Agreement and the Privacy Policy. The
Privacy Policy contains an overview of the categories of Subprocessors involved in the
performance of the relevant TCP Services. The appointment of a Subprocessor to
perform part or all the TCP Services hereunder shall not relieve TCP of any liability under
this Agreement.
3. Data Security.
3.1 Securitv Standards.
3.1.1 TCP shall implement reasonable security procedures consistent with
industry standards to protect Client Data from unauthorized access, including without
limitation (i) industry -standard encryption of data at rest within TCP's data centers; (ii)
web application firewalls; (iii) virus detection and anti-virus software; (iv) authentication
techniques, such as user names and passwords, or authorization formats, which limit
access to particular TCP personnel; and (v) additional security controls consistent with
SOC 2 Type II reporting standards.
3.1.2 The Parties shall implement administrative, technical and physical
security procedures consistent with industry standards and applicable data protection
laws to protect Client Data from unauthorized access, including by adopting access
policies that prevent the internal sharing or inadvertent communication of login
credentials.
3.1.3 Client is responsible for reviewing the information made available by
TCP relating to data security and making an independent determination as to whether the
TCP Services meet Client's requirements and obligations under applicable data
protection laws. Client acknowledges that data security measures taken by TCP are
subject to technical progress and development and TCP may update or modify such
security measures from time to time, provided that such updates and modifications do not
result in the degradation of the overall security of the TCP Services.
3.2 Security Breach Notifications. TCP will promptly report to Client any
unauthorized access to Client Data within TCP's or its Subprocessors' systems upon
discovery and in accordance with applicable data breach notification laws. TCP will use
diligent efforts to promptly remedy any breach of security that permitted such
unauthorized access. TCP's notification of or response to any security incident under this
TCP Services Agreement I wl 12.11.24 5
Section 3.2 shall not be construed as an acknowledgment by TCP of any fault or liability
with respect to such security incident.
3.3 Data Backup and Retention_. TCP shall undertake commercially reasonable
efforts to backup Client Data with a restore point objective of twenty-four (24) hours.
Client Data shall be backed up and retained in accordance with TCP's retention policy as
set forth in the Privacy Policy.
4. Data Privacy. TCP will process Employee Personal Data in accordance with the
terms of this Agreement, the Privacy Policy and all applicable data protection laws. Client
must maintain its own data collection, disclosure, retention, and storage policies in
compliance with applicable law.
4.1 Biometric Data. To the extent that Client collects, captures, stores, or
otherwise uses Biometric Data relating to an individual, Client must (i) first inform the
individual from whom Biometric Data will be collected, in writing and prior to collecting his
or her Biometric Data, that Biometric Data is being collected, stored, and/or used; (ii)
indicate, in writing, the specific purpose(s) (which may not be other than employment-
related purposes) and length of time for which Biometric Data is being collected, stored,
and/or used; and (iii) receive a written release from the individual (or his or her legally
authorized representative) authorizing the Client, TCP, TCP's third -party service
providers (who are subject to restrictions no less restrictive than those imposed on TCP
herein) to collect, store, and/or use the Biometric Data and authorizing the Client to
disclose such Biometric Data to TCP and TCP's third -party service providers
4.2 Requests. Client agrees to adopt a commercially reasonable policy for
managing data requests from Designated Users and Employees, which policy shall
safeguard the rights of such data subjects and respect the original purpose of such data
collection. Client, as the Party which determines the means and purposes for processing
Client Data, shall be responsible for receiving, investigating, documenting, and
responding to all Designated User and Employee requests for inspection or erasure of
Personal Data.
4.3 Assistance. If Client receives a request from a Designated User or
Employee to exercise such individual's rights under applicable data protection laws, and
Client requires TCP's assistance to respond to such request in accordance with
applicable data protection laws, TCP shall assist the Client by providing any necessary
information and documentation that is under TCP's control. TCP shall be given
reasonable time to assist the Client with such requests in accordance with applicable law.
4.4 Client's Privacy Policy. Where required by law, Client agrees to adopt a
privacy policy in alignment with this Agreement and all applicable laws governing the
collection, use, transfer and retention of Personal Data. Client agrees to provide TCP,
upon reasonable request, Client's adopted privacy policy.
TCP Services Agreement I wl 12.11.24 6
5. Confidential Information.
5.1 Each Party (the "Receiving Party") acknowledges that it will have access to
certain confidential information of the other Party (the "Disclosing Party") concerning the
Disclosing Party's business, plans, customers, software, technology and products, other
information held in confidence by the Disclosing Party, and Personal Data. In addition, a
Disclosing Party's confidential information will include (i) all information in tangible or
intangible form that is marked or designated as confidential or that, under the
circumstances of its disclosure, should be considered confidential, and (ii) the TCP
Technology and related algorithms, logic, design, specifications, and coding
methodology, and to the extent permitted by law, the terms and conditions of this
Agreement, but not its existence (all of the foregoing being referred to as "Confidential
Information").
5.2 The Receiving Party agrees that it will not use in any way, for its own
account or the account of any third party, except as expressly permitted by, or required
to achieve the purposes of, this Agreement, nor disclose to any third party (except as
required by law or to that party's attorneys, accountants and other advisors as reasonably
necessary), any of the Disclosing Party's Confidential Information, and will take
reasonable precautions to protect the confidentiality of such Confidential Information in at
least the same manner as is necessary to protect its own Confidential Information and in
accordance with applicable data protection laws. To the extent that the Receiving Party
is permitted to retransmit any Confidential Information it receives from the Disclosing
Party, the mode of retransmission must be at least as secure as the mode by which the
Disclosing Party transmitted the Confidential Information to the Receiving Party.
5.3 Information will not be deemed Confidential Information hereunder if such
information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party,
whether directly or indirectly, from a source other than one having an obligation of
confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure
by the Disclosing Party) to the Receiving Party, whether directly or indirectly, from a
source other than one having an obligation of confidentiality to the Disclosing Party; (iii)
becomes publicly known or otherwise ceases to be secret or confidential, except through
a breach of this Agreement by the Receiving Party; or (iv) is independently developed by
the Receiving Party without use of or reference to the Confidential Information.
6. Cooperation With Authorities. If either Party is requested to disclose all or any
part of any Confidential Information under a subpoena or inquiry issued by a court of
competent jurisdiction or by a judicial or administrative agency or legislative body or
committee, the Receiving Party shall (i) immediately notify the Disclosing Party of the
existence, terms and circumstances surrounding such request; (ii) consult with the
Disclosing Party on the advisability of taking legally available steps to resist or narrow
such request and cooperate with the Disclosing Party on any such steps it considers
advisable; and (iii) if disclosure of the Confidential Information is required or deemed
advisable, exercise its best efforts to obtain an order, stipulation or other reasonably
acceptable assurance that the Confidential Information or part thereof required to be
disclosed shall retain its confidentiality and remain otherwise subject to this Agreement.
TCP Services Agreement I wl 12.11.24 7
Although TCP will not systematically monitor the Client Data, TCP reserves the right,
upon prior written notice to Client, to remove access to Client Data to comply with
applicable law, provided, however, that access to such Client Data will be restored upon
a mutual determination of the Parties that such Client Data is in compliance with, or has
been modified to be in compliance with, applicable law.
7. Supplemental Services; Master Agreement.
7.1 TCP may provide to Client supplemental services in accordance with a
Statement of Work or a separate services agreement.
7.2 Client may elect to purchase additional products and services via Order
Forms from time to time. The Parties agree that this Agreement is a master agreement
such that additional transactions, excluding leased hardware, will be governed by the
terms and conditions hereof. Pricing for additional transactions shall be in accordance
with TCP's then -current pricing schedule. Client agrees that absent TCP's express
written acceptance thereof indicated by execution by an officer of TCP, the terms and
conditions contained in any purchase order or other document issued by Client to TCP
for the purchase of additional services, shall not be binding on TCP to the extent that such
terms and conditions are additional to or inconsistent with those contained in this
Agreement.
7.3 Hardware purchased from TCP and incorporated into TCP Services
requires the purchase of a Hardware Support and Maintenance Agreement, which shall
be renewed for the term of this Agreement.
B. Use Fees.
8.1 In consideration for the performance of the TCP Services, Client shall pay
TCP the Use Fees. During the Term, Client will be billed in advance an amount equal to
charges as indicated in the applicable invoice or Order Form. All other charges for TCP
Services received and expenses incurred during a month will be billed at the end of the
month in which the TCP Services were provided. Payment by Client for all Use Fees is
due upon receipt of each TCP invoice, and in no event shall such payment be received
by TCP later than thirty (30) days after the invoice, except in cases where a Net Terms
Agreement has been authorized by TCP. All payments will be made to TCP in U.S.
dollars.
8.2 TCP Services charges will be equal to the number of total Active Licenses
multiplied by the Monthly License Fee which is based on the aggregated Permissions for
each Active License. Client is responsible for Monthly License Fees for the maximum
number of Active Licenses during any calendar month. Client may add additional
Employees, Designated Users and Permissions as desired each month by paying the
Monthly License Fees on the next billing cycle. Client agrees to promptly update the
status in the TCP Services for any Active License which has been terminated or
suspended.
TCP Services Agreement I wl 12.11.24 8
8.3 Employees and Designated Users added at any time during a calendar
month will be charged in full for that billing period. Because Client is billed in advance for
TCP Services, if Client increases its Active License count or increases Permissions during
a calendar month, Client will receive an invoice reflecting the increased Active License
count with overage charges incurred from the previous month and prorated over the
number of months remaining in the Term.
8.4 Hardware Support and Maintenance charges will be equal to the
percentage set forth in the applicable Hardware Support and Maintenance Agreement
multiplied by the total purchase price of the Supported Hardware.
8.5 Except as set forth in Section 8.6 of this Agreement, after the first
anniversary of this Agreement, TCP may increase the Use Fees at any time effective
thirty (30) days after providing notice to Client; provided, however, that any such increase
will not occur more than once in a consecutive twelve (12) month period.
8.6 Client may prepay greaterthan one (1) yearwith TCP Services and, in doing
so, suspend any increase in Use Fees until expiration of the Initial Term. After the Initial
Term, TCP may increase the Use Fees by no more than 10% at any time effective thirty
(30) days after providing notice to Client; provided, however, that any such increase will
not occur more than once in a consecutive twelve (12) month period.
9. Taxes. As applicable, Client shall, in addition to the other amounts payable under
this Agreement, pay all sales, use, value added or other taxes, whether federal, state or
local, however named, arising out of the transactions contemplated by this Agreement,
except that Client shall not be liable for taxes based on TCP's aggregate income.
14. Term; Guaranteed Payment. This Agreement commences on the Effective Date
and, unless terminated earlier in accordance with Section 11, will remain in effect for the
term specified in the applicable Order Form ("Initial Term") and then shall automatically
renew for subsequent terms consistent with the Initial Term thereafter, unless either Party
gives written notice of non -renewal at least thirty (30) days prior to the end of the then
current term (the Initial Term and subsequent renewal terms being referred to as the
"Term"). For avoidance of doubt, except as otherwise set forth in the terms and conditions
of this Agreement, all fees mutually agreed to in an Order Form are committed and non-
cancelable.
11. Termination for Cause. A Party may terminate this Agreement for cause if (i) the
other Party breaches any material term or condition of this Agreement and fails to cure
such breach within thirty (30) days after receipt of written notice of the same, or in the
case of failure to pay Use Fees, thirty (30) days; (ii) the other Party becomes the subject
of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency,
receivership, liquidation or composition for the benefit of creditors; or (iii) the other Party
becomes the subject of an involuntary petition in bankruptcy or any involuntary
proceeding relating to insolvency, receivership, liquidation or composition for the benefit
of creditors, and such petition or proceeding is not dismissed within sixty (60) days of
TCP Services Agreement I wl 12.11.24 9
filing. Notwithstanding the foregoing, if a material breach by Client, by its nature, cannot
be cured, TCP may terminate this Agreement immediately.
11.1 Termination for Non -Appropriation. Notwithstanding any other provision of
this Agreement, if funds for the continued fulfillment of this Agreement are at any time not
forthcoming or are insufficient. Through failure of the governing body to appropriate funds,
then the Client will have the right to terminate this Agreement at no additional cost and
with no penalty whatsoever by giving prior written notice documenting the lack of funding.
The Client will provide at least thirty (30) days advance written notice of such termination.
The Cilent will use reasonable efforts to ensure appropriated funds are available.
Notwithstanding the above, both parties agree that the sole outcome of this clause is to
allow the Client to terminate the Agreement upon each anniversary date of the Effective
Date when the subscription billing commences and for the sole reason of Non -
Appropriation of funds.
12. Effect of Termination. Without prejudice to any right or remedy of a Party with
respect to the other Party's breach hereunder, upon the effective date of any termination
of this Agreement:
12.1 TCP's obligation to provide the TCP Services shall immediately terminate;
12.2 after such termination and upon Client's reasonable request, no later than
thirty (30) days from termination, TCP shall provide Client Data to Client in a SQL
database file format; and
12.3 within thirty (30) days of such termination, each Party will destroy or return
all additional Confidential Information of the other Party in its possession and will not
make or retain any copies of such Confidential Information except as required to comply
with any applicable legal or accounting record keeping requirement.
13. Intellectual Property Ownership. Subject to the limited rights expressly granted
hereunder, TCP reserves all right, title, and interests in and to the TCP Services and TCP
Technology, including all intellectual property rights embodied therein, which shall remain
the sole and exclusive property of TCP or its licensors. No rights are granted to Client
hereunder other than as expressly set forth herein. This Agreement does not transfer
from TCP to Client any ownership interest in the TCP Services or TCP Technology and
does not transfer from Client to TCP any ownership interest in Client Data.
14. Client Representations and Warranties.
14.1 Client represents and warrants that (i) it has the legal right to enter into this
Agreement and perform its obligations hereunder, and (ii) the performance of Client's
obligations and use of the TCP Services by Client, its Designated Users and Employees
will not violate any applicable laws, including all applicable domestic and international
data protection laws, or cause a breach of duty to any third party, including Employees.
14.2 Client represents and warrants that all Personal Data included in the Client
Data has been collected from all Employees and Designated Users and will be transferred
TCP Services Agreement I wl 12.11.24 10
to TCP in accordance with all applicable data protection laws, including, but not limited
to, the EU General Data Protection Regulation 2016/679 and the Illinois Biometric
Information Privacy Act, to the extent applicable. Client acknowledges and agrees that
(i) TCP is a service provider and processes Client Data solely on behalf of and at the
direction of Client, and exercises no control whatsoever over the content of the Client
Data passing through the TCP Services or that is otherwise transferred by Client to TCP,
and (ii) it is the sole responsibility of Client to ensure that the Client Data passing through
the TCP Services or that is otherwise transferred by Client to TCP complies with all
applicable laws and regulations, whether now in existence or hereafter enacted and in
force.
14.3 Client represents and warrants that its Affiliates' use of the TCP Services, if
any, shall not relieve Client of any liability under this Agreement, and Client shall be
responsible and liable for the acts and omissions of its Affiliates hereunder as if performed
or omitted by Client.
14.4 In the event of any breach of any of the foregoing representations or
warranties in this Section 14, in addition to any other remedies available at law or in
equity, TCP will have the right to suspend immediately any TCP Services if deemed
reasonably necessary by TCP to prevent any harm to TCP and its business. TCP will
provide notice to Client and an opportunity to cure, if practicable, depending on the nature
of the breach. Once cured, TCP will promptly restore the TCP Services.
15. TCP Representations and Warranties. TCP represents and warrants that (i) it
has the legal right to enter into this Agreement and perform its obligations hereunder, and
(ii) the performance of its obligations and delivery of the TCP Services to Client will not
violate any applicable laws or regulations of the United States or cause a breach of any
agreements between TCP and any third parties.
16. Mutual Representations and Warranties. Each Party represents and warrants
that it has implemented a comprehensive written information security program that
includes appropriate administrative, technical and physical safeguards to: (i) ensure the
safety and confidentiality of Personal Data; (ii) protect against unauthorized access to and
use of Personal Data; (iii) protect against anticipated threats or hazards to the security or
integrity of Personal Data, and (iv) comply with applicable data protection laws.
17. Limited Warranty. TCP represents and warrants that the TCP Services and
related products, as described with this Agreement, will perform in accordance with all
TCP published documentation, contract documents, contractor marketing literature, and
any other communications attached to or referenced in this Agreement and that the TCP
Services will be free of errors and defects that materially affect the performance of the
TCP Services ("Limited Warranty"). Client's sole and exclusive remedy for breach of the
Limited Warranty shall be the prompt correction of non -conforming TCP Services at
TCP's expense.
18. Warranty Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET
FORTH IN SECTION 170 (LIMITED WARRANTY), THE TCP SERVICES ARE
TCP Services Agreement I wl 12.11.24 11
PROVIDED BY TCP ON AN "AS IS" BASIS, AND CLIENT'S USE OF THE TCP
SERVICES IS AT CLIENT'S OWN RISK, TCP AND ITS SUPPLIERS DO NOT MAKE,
AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED
WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AGAINST HIDDEN DEFECTS, AND ANY WARRANTIES
ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TCP
DOES NOT WARRANT THAT THE TCP SERVICES WILL BE UNINTERRUPTED OR
ERROR -FREE. NOTHING STATED OR IMPLIED BY TCP WHETHER THROUGH THE
TCP SERVICES OR OTHERWISE SHOULD BE CONSIDERED LEGAL COUNSEL.
TCP HAS NO RESPONSIBILITY TO NOTIFY CLIENT OF ANY CHANGES IN THE LAW
THAT MAY AFFECT USE OF THE TCP SERVICES. ANY ORAL STATEMENT OR
IMPLICATION BY ANY PERSON CONTRADICTING THE FOREGOING IS
UNAUTHORIZED AND SHALL NOT BE BINDING ON TCP. CLIENT ACKNOWLEDGES
THAT IN ENTERING INTO THIS AGREEMENT, CLIENT HAS RELIED UPON CLIENT'S
OWN EXPERIENCE, SKILL AND JUDGMENT TO EVALUATE THE TCP SERVICES
AND THAT CLIENT HAS SATISFIED ITSELF AS TO THE SUITABILITY OF SUCH
SERVICES TO MEET CLIENT'S BUSINESS AND LEGAL REQUIREMENTS.
19. Indemnification.
19.1 Client hereby acknowledges and agrees that TCP may not be aware of all
rights available to Client's Designated Users or Employees under all data protection
regimes. Client, to the extent permitted by law, shall indemnify, defend and hold harmless
TCP, its Affiliates, Subprocessors, officers, managers, directors, employees, agents,
advisors and other representatives (the "TCP Indemnitees") from and against any lawsuit,
liability, loss, cost or expense (including reasonable attorneys' fees) actually incurred or
suffered by TCP Indemnitees of every kind and nature to the extent caused by or resulting
from (i) any breach of a representation or warranty made by Client under this Agreement;
or (il) a third -party claim made against a TCP Indemnitee arising from or related to Client's
failure to comply with any applicable domestic or foreign data protection laws or
regulations. Client shall have the right to control any defense provided pursuant to this
Section 19.1, provided, however, that Client shall not, without TCP's prior written consent,
(A) enter into any settlement or compromise or consent to the entry of any judgment that
does not include the delivery by the claimant or plaintiff to the applicable TCP Indemnitee
of a written release from all liability in respect of such third party claim, or (B) enter into
any settlement or compromise with respect to any third party claim that may adversely
affect the applicable TCP Indemnitee other than as a result of money damages or other
monetary payments that are indemnified hereunder.
19.2 TCP will indemnify, defend and hold harmless Client and its Affiliates (the
"Client Indemnitees") from and against any lawsuit, liability, loss, cost or expense actually
incurred or suffered by a Client Indemnitee of every kind and nature to the extent caused
by or resulting from a third -party claim made against a Client Indemnitee that the TCP
Technology infringes on any U.S. intellectual property right of a third party; provided,
however, that TCP is notified In writing of such claim promptly after such claim is made
upon Client. TCP shall have the right to control any defense provided pursuant to this
Section 19.2. In no event shall Client settle any such claim without TCP's prior written
TCP Services Agreement I wl 12.11.24 12
approval. If such a claim is made or if the TCP Technology, in TCP's opinion, is likely to
become subject to such a claim, TCP may, at its option and expense, either (i) procure
the right to continue using the TCP Technology or portion thereof, or (ii) replace or modify
the TCP Technology or portion thereof so that it becomes non -infringing. If TCP
determines that neither alternative is reasonably practicable, TCP may terminate this
Agreement with respect to the portion of the TCP Technology infringing or alleged to
infringe. TCP shall have no liability or obligation under this Section 19.2 if the claim arises
from (i) any alteration or modification to the TCP Technology other than by TCP, (ii) any
combination of the TCP Technology with other programs or data not furnished by TCP,
or (iii) any use of the TCP Technology prohibited by this Agreement or otherwise outside
the scope of use for which the TCP Technology is intended.
20. Liability Limitation. Except for claims arising out of Section 19.2 (TCP's
Intellectual Property Indemnity) and Section 5 (Confidential Information), in no event shall
TCP's aggregate liability, if any, including liability arising out of contract, negligence, strict
liability in tort or warranty, or otherwise, exceed the sum of amounts paid by Client to TCP
during the twelve (12) months immediately prior to the date of the claim.
21. Notices. Any notice or communication required or permitted to be given
hereunder may be delivered by hand, deposited with an overnight courier, sent by email
(provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt
requested, to the address set forth on the initial page hereof.
22. Assignment. This Agreement shall not be assigned by either Party without the
prior written consent of the other Party, which shall not be unreasonably withheld;
provided, however, that either Party may, without the prior consent of the other, assign
all of its rights under this Agreement to (i) such Party's parent company or a subsidiary of
such Party, (ii) a purchaser of all or substantially all of such Party's assets related to this
Agreement, or (iii) a third party participating in a merger, acquisition, sale of assets or
other corporate reorganization in which such Party is participating. This Agreement shall
bind and inure to the benefit of the Parties and their respective successors and permitted
assigns.
23. Continuing Obligations. Those clauses the survival of which is necessary for the
interpretation or enforcement of this Agreement shall continue in full force and effect in
accordance with their terms notwithstanding the expiration or termination hereof, such
clauses to include the following: (i) any and all warranty disclaimers, limitations on or
limitations of liability and indemnities granted by either Party herein; (ii) any terms relating
to the ownership or protection of intellectual property rights or Confidential Information of
either Party, or any remedy for breach thereof; and (iii) the payment of taxes, duties, or
any money to either Party hereunder.
24. Marketing. During the Term hereof, Client agrees that TCP may publicly refer to
Client, orally and in writing, as a customer of TCP. Any other reference to Client by TCP
requires the written consent of Client.
TCP Services Agreement I wl 12.11.24 13
25. Force Majeure. Except for the obligation to make payments, neither Party will be
liable for any failure or delay in its performance under this Agreement due to any cause
beyond its reasonable control, including acts of war, terrorism, acts of God, epidemic,
earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act
or complete or partial failure of the Internet (not resulting from the actions or inactions of
TCP), provided that the delayed Party: (i) gives the other Party prompt notice of such
cause, and (ii) uses its reasonable commercial efforts to promptly correct such failure or
delay in performance.
26. Dispute Resolution. For any dispute, controversy or claims arising out of or
relating to this Agreement or the breach, termination, interpretation or invalidity thereof or
any Invoice, or Order Form, the Parties shall endeavor for a period of two (2) weeks to
resolve the Dispute by negotiation. This period may be extended by mutual agreement
of the Parties. In the event the Dispute is not successfully resolved, the Parties agree to
submit the Dispute to litigation in a court of competent jurisdiction.
27. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE
OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, AND APPENDICES
ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED
HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO
REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE
FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) IT HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER
KNOWINGLY AND VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 27.
28. Class Action Waiver. THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY
CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN
ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS
PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC
POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF
LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE
OTHER, THE PARTIES AGREE THAT: (1) THE PREVAILING PARTY SHALL NOT BE
ENTITLED TO RECOVER ATTORNEYS' FEES OR COSTS ASSOCIATED WITH
PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY
OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES
OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR
OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS
OR REPRESENTATIVE ACTION.
29. Applicable Law; Jurisdiction; Limitations Period. This Agreement shall be
construed under the laws of the State of Texas, without regard to its principles of conflicts
TCP Services Agreement I wl 12.11.24 14
of law. To the extent permitted by law, no action, regardless of form, arising out of this
Agreement may be brought by either Party more than one (1) year after the cause of
action has arisen.
30. Counterparts; Facsimile Signatures. This Agreement may be executed in
multiple counterparts, each of which, when executed and delivered, shall be deemed an
original, but all of which shall constitute one and the same instrument. Any signature
page of any such counterpart, or any email transmission thereof, may be attached or
appended to any other counterpart to complete a fully executed counterpart of this
Agreement, and any email transmission of any signature of a Party shall be deemed an
original and shall bind such Party.
31. Miscellaneous. This Agreement constitutes the entire understanding of the
Parties with respect to the subject matter of this Agreement and merges all prior
communications, understandings, and agreements. This Agreement may be modified
only by a written agreement signed by the Parties. In the case of any conflict between
this Agreement and the Privacy Policy, the Privacy Policy shall control. The failure of
either Party to enforce any of the provisions hereof at any time shall not be a waiver of
such provision, any other provision, or of the right of such Party thereafter to enforce any
provision hereof. If any provision of this Agreement is declared invalid or unenforceable,
such provision shall be deemed modified to the extent necessary and possible to render
it valid and enforceable. In any event, the unenforceability or invalidity of any provision
shall not affect any other provision of this Agreement, and this Agreement shall continue
in full force and effect and be construed and enforced as if such provision had not been
included or had been modified as above provided.
[Signature Page Follows]
TCP Services Agreement I wl 12.11.24 15
Accepted by:
Client
By: IK- toe, lSlq"j 4�Jo2ou
WAt�-A �
;Knee.
Name:
Title: �►:�uC� �}1i1�'._.
TimeClock Plus, LLC
By:
Name: Whitney Leifeste
Title: Director of Legal Services
TCP Services Agreement I wl 12.11.24 16
Docusign Envelope ID: 77119E3A-OC18-41F9-B3B4-E128038F45C8
icp
CLIENT INFORMATION
Shipping Method: UPS Ground
Purchased for: Kodiak Island Borough
Bill To: Kodiak Island Borough
Billing Address: 710 Mill Bay Road
Kodiak, AK 99615
United States
Billing Contact Name: Nakita Medina
Billing Contact Email: nmedina@kodiakak.us
Billing Contact Phone: 9074869322
BILLING TERMS
TIMECLOCK PLUS,
LLC
1 TIMECLOCK DRIVE
SAN ANGELO, TX 76904
QUOTE # : Q040940
CONTRACT START DATE : 12/20/2024
Contract Contact Name: Nakita Medina
Contract Contact Email nmedina@kodiakak.us
INITIAL TERM
RENEWAL TERM
PAYMENT TERM
PAYMENT METHOD
60 MONTHS
60 MONTHS
NET 30
CHECK
ITEM DESCRIPTION
PRICE PER UNIT
QUANTITY
CHARGE TYPE
ORDER TOTAL
•RDT + UNIV RFID
$2,174.25
5
ONE-TIME
$10,871.25
ENTERPRISE LICENSE ANNUAL
$61.20
45
RECURRING
$2,754.00
CHARGE
OVERAGE ENTERPRISE LICENSE
ANNUAL CHARGE
$61.20
USAGE
$0.00
HARDWARE SUPPORT &
$2,408.40
1
RECURRING
$2,408.40
MAINTENANCE
'BATTERY BACKUP
$216.00
5
ONE-TIME
$1,090.00
•POWER OVER ETHERNET (POE)
$285.75
5
ONE-TIME
$1,429.75
802.3 A F
IMPLEMENTATION SERVICES
$210.00
15
ONE-TIME
$3,150.00
PREPAID HOURS
HARDWARE S&H
$267.39
1
ONE-TIME
$267.39
QUOTE EXPIRATION DATE : 12/20/2024
billing@tcpsoftware.com +l (325) 223-9500
Pagel of 2
SUBTOTAL
$21,959.79
TAXES
$0.00
GRAND TOTAL
$21,959.79
CURRENCY
USD
www.tcpsoftware.com
Docusign Envelope ID: 77119E3A-OC18-41F9-B3B4-E128038F45C8
SPECIAL TERMS:
SERVICE TERMS & CONDITIONS
TimeClock Plus, LLC ("TCP"), a Delaware limited liability company, will provide Client and its authorized Employees and Users access to the
Services during the Initial Service Term in accordance with the complete terms and conditions (collectively the "Licensing Agreement") found at:
https://www.tcpsoftware.com/legal
TCP reserves the right to modify the Licensing Agreement at TCP's sole discretion provided that changes shall not materially decrease the Services
features and functionalities that Client has subscribed to during the then -current term. Should TCP make any modifications to the Licensing
Agreement, TCP will post the amended terms on the applicable URL link and will update the "Last Updated Date" within such documents to notify
Client of said changes.
This Order Form is entered into as of the Contract Start Date contained herein (the "Effective Date") by and between TimeClock Plus, LLC and the
entity named in the Bill To section herein (the "Client"), and is subject to the Licensing Agreement. In the event of any conflict between the Order
Form and the Terms and Conditions (as applicable), the terms of the Order Form shall control.
Client shall pay all fees or charges in accordance with those outlined on the Order Form. Except for cases of TCP breach, all fees are committed and
non -cancelable during the term of the agreement
The individuals executing this Agreement on behalf of each Party represent and warrant to the other Party that they are fully authorized and
legally capable of executing this Agreement on behalf of such Party and that such execution is binding upon such Party.
Accepted by
Client
Kodiak Island Borough
TimeClock Plus, LLC
By:
By:
signed bYII.II11''II
u- WIwa*s
Dmuftnle by -
vNa :'vt{./bl,Tl�lfM
By: Crrava^�nrrn. II
Aimee Williams
Derek McIntyre
Name:
Name:
Borough Manager
coo
Title:
Title:
ATTEST:
Lina Crug, CIVIC
Deputy Clerk
DATE: /a ao
billing@tcpsoftware.com
+1 (325) 223-9500 www.tcpsoftware.com
Page 2 of 2