1. Definitions

“Active Employee” means an Employee currently employed or contracted by Client, who is not currently marked as Terminated and is currently licensed to use the Lanteria HR Software. Active employees are limited to the number of licenses provided in Exhibit 1.

“Application Error” means a Software Error produced by a fault in the application that is not attributable to a Configuration Error.

“Change Request” means a request for changing the system behavior.

“Confidential Information” includes:

(i) any information including, but not limited to, business plans, system guides, financial information, and performance information not in the public domain, whether in oral, written, or other form, that is identified as proprietary or confidential or provided under circumstances that reasonably indicate that the information is proprietary or confidential; and

(ii) the Software. (See below for a definition of “Software”)

“Configuration Error” means a Software Error that is caused by the Client. Lanteria’s Software allows for the end user to make changes to the Software settings that could result in faults that are interpreted as Software Errors. **These changes may be corrected by Lanteria, but the Client will be billed for any corrections in accordance with the terms of section 3**

"Client Data" all works and materials:

(i) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Client or by any person or application or automated system using the Client's account; and

(ii) otherwise provided by the Client to the Lanteria in connection with this Agreement.

“Delivery Date”  means the date this contract is delivered by Lanteria to Client. The contract must be signed within 30 days of this date in order to be binding on both parties.

“Effective Date” means the date this contract will become binding on both parties; see Front Cover.

“Employee” means a record created in the Software for an individual employee, consultant, contractor or agent of the Client and/or the Client’s Affiliates.

“Go Live” means the date the Software is first made available to the Client. Client’s Active Employees will then have the ability to initiate transactions.

“Incident” includes deviations from Lanteria’s published technical and user guide documentation.

“Minor Function” means a system function that enhances the user experience, but that is not required for the software to function properly.

“Platform” means the Software platform known as Lanteria HR that is owned and operated by Lanteria, and that will be made available to the Client as a service via the Internet under this Agreement; see also Exhibit 1.

“Permitted Purpose” means the intended purpose for which the Lanteria Platform was designed, including but not limited to providing human resource services. The Software may not be used for any wrongful purposes such as illegal or unlawful purposes, propagating malware, redistributing or transferring the Software to a third party, or any other similar purpose.

“Response time” means the agreed upon time Lanteria has to react and/or respond to the Client’s requests demands for support. See Exhibit 4.

“Service Capacity” means the standard server capacity as provided in this Agreement in Exhibit 1.

“Software” means a computer program, application, tool, or database that Lanteria has licensed to the Client based on this Agreement.

“Software Error” means a failure or fault in the Software that causes it to produce an incorrect or unexpected result, or to behave in unintended ways compared to the system guides and documentation provided by Lanteria. There are two categories of Software Errors defined herein: Application Error & Configuration Error.

“Software Maintenance” includes: improving the Software performance; fixing Application Errors; and adding new features to the Software.

“Support” means software assistance provided by Lanteria to remedy defects in the Software that are not otherwise covered under warranty. Support in this context includes software assistance provided: onsite, by telephone, by Client approved remote access or by electronic mail.

“Support Question” means a question regarding functional or software aspects of the Software. This does not include Software Errors.

“Term” means the duration of this Agreement, as stated in section 4 below.

“Update” means a Software patch issued by Lanteria to correct defects or deficiencies in the Software or to provide minor modifications that do not substantially change the basic character or structure of the Software.

Upgrade” means a release of Software that provides significant improvements and changes the basic character or structure of the currently licensed Software. These improvements and changes go beyond the minor improvements or corrections of an Update.

“User” means an individual who is entitled to access and use the Software pursuant to this Agreement.

  1. Scope of Services

The Client hereby obtains the following Services (as defined in sections 2.1 and 2.2):

  • Access to the Lanteria Platform; and
  • Software maintenance and support

2.1   Access to the Platform

(i)  Lanteria hereby grants to the Client a non-exclusive temporary license to use the

Platform for the Permitted Purpose during the Term. The Software may not be used for any wrongful purposes such as illegal or unlawful purposes, propagating malware, redistributing or transferring the Software to a third party, or any other similar purpose.

(ii) Lanteria will make available the Platform to the Client by setting up an account for the

Client on the Platform, and providing to the Client login details for that account.

(iii) The Description of Platform is stated in the Exhibit 1 and in Section I Definitions.

(iv) The license granted by Lanteria to the Client under this Agreement is subject to the following limitations:

a)  The License grants a limited number of Active Employees that can be stored in the Software for the Client. See Exhibit 1 for the number of Active Employees allowed;

b)  The License allows the Client’s to use the Software to store information related to terminated and resigned employees. Storage of such information shall not count towards the number of Active Employees allowed;

c)   The Client may purchase additional licenses, at any time, in units of 10 or more employees, at the rate effective at the time of purchase;

d)  The Client’s access shall be limited to the Software Modules stated in Exhibit 1;

e)  The Client must not use the Platform:

1)  in any way that is unlawful, illegal, fraudulent or harmful; or

2)  in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

2.2   Software Maintenance and Support

2.2.1 Updates and Upgrades

(i)  Lanteria will provide the Client with all Software updates and upgrades (defined as new features, capabilities, and operational characteristics) completed and implemented during the term of this Agreement.

(ii) Lanteria is entitled at its sole discretion to perform any updates, upgrades, system maintenance or any other modifications of the Software and Platform.

(iii) Lanteria will use commercially reasonable efforts to pre-announce any scheduled downtime associated with upgrades and maintenance. The operation of and access to the Platform may be interfered with by numerous factors outside of Lanteria’s control and Lanteria will not be liable for any such costs, losses, expenses, damages, or liabilities arising out of or related to any delay or failure in performance.

(iv) If the Client has received any customizations to the Software and wishes to Upgrade to the new version, the custom solution will need to be upgraded and will incur additional charges. (See section 3.3)

2.2.2 Client Support Services

(i)  Lanteria will  provide  the  Client  with  commercially reasonable support  services  for  answering support questions, resolving incidents, and processing change requests and technical errors. This support may include, but is not limited to, making changes to the Software or suggesting workarounds for the current software. The maximum number of support hours with a Lanteria specialist provided under this agreement is stated in Exhibit 1. Support hours included in this Agreement must be used within the current Term and are not carried over to the next Term.

(ii)  Investigating and resolving of Configuration Errors are not covered by Support and will be chargeable for the Client if the error occurred due to one of the following reasons:

a.   improper use of the Software or Platform;

b.  modification of the Software or Platform done by any person other than Lanteria without Lanteria’s prior written consent;

c.   failure by the Client to implement recommendations in respect of the solutions and faults previously advised by Lanteria;

d.  issues in the Client’s own equipment, software, network connections or other infrastructure;

e.  third party acts, services or systems; or

f.   general Internet problems, force majeure events or other factors outside of

Lanteria’s reasonable control

(iii)  Where the Client has not caused the errors, Lanteria will correct Application errors at Lanteria’s own cost. The Client will not be charged for the hours Lanteria spends on investigating and resolving Application Errors with the Software if the Client is not at fault.

(iv) Lanteria support is provided to the following three (3) authorized, designated Client contacts specified in Exhibit 3. Unless Lanteria is otherwise notified, these three (3) designated Client contacts shall have Client’s authority to authorize billable support work.

(v) The Service Level and Conditions are defined in Exhibit 4.

  1. Payment Terms

3.1   Recurring Fees

(i)  For the services outlined in this agreement, the Client will pay Lanteria the recurring fees as stated in Exhibit 2.

(ii) If the Client orders additional Employee licenses, upgrades the set of modules, exceeds the Service Capacity set forth on the Exhibit 1, or otherwise requires the payment of additional fees (per the terms of this Agreement), the Client shall be billed for such usage and the Client agrees to pay the additional fees in the manner provided herein.

(iii) Lanteria reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the  Initial  Term  or  the current  renewal  term,  upon thirty (30) days prior written notice to the Client.

(iv) If the Client believes that Lanteria has billed the Client incorrectly, the Client must provide Lanteria with notice no later than 60 days after the closing date on the first billing statement in which the error or problem appeared. If the Client fails to provide notice to Lanteria within 60 days of the closing date, Lanteria will not provide an adjustment or credit.

(v) All fees under this Agreement exclude applicable taxes.

3.2   Payment Schedule

(i)  The Client will pay Lanteria for any invoices received from Lanteria within 30 days of receipt of the invoice.

(ii) Unpaid amounts are subject to a finance charge each month on any outstanding balance, or the maximum permitted by applicable law, plus all expenses of collection including attorney’s fees, and may result in the immediate termination of Service, at Lanteria’s discretion.

(iii)   If the services outlined in this Agreement are re-instated after a termination or temporary suspension, Lanteria reserves the right to charge Client a re-instatement fee.

3.3   Services Ordered Additionally

(i)  If the Client orders any other Software related services that are not included into this Agreement, such services will be charged on the Time and Material basis, unless otherwise agreed upon. After the service delivery, the agreed hours will be charged based on the hourly rate stated in Exhibit 1. Lanteria agrees that the hourly rate shall stay in effect for a period of at least ninety days following the Effective Date.

  1. Term and Termination

(i)  This Agreement is valid for a period of one year (“Initial Term”) commencing on an anniversary of the Effective Date, and shall be automatically renewed for additional periods of the same duration (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

(ii) Either party may terminate this Agreement if the other party materially breaches this Agreement and does not remedy said breach within thirty (30) days of its receipt of written notice from the non-breaching party.

(iii) Lanteria may terminate this Agreement without notice in case of any outstanding payment due for more than thirty (30) days.

  1. Confidentiality and Client Data

(i)  Each party shall preserve the confidentiality of the other party’s Confidential Information and treat such Confidential Information with at least a reasonable standard of care.

(ii) Neither party shall be liable to the other for the release of Confidential Information if it:

a)   was known to the receiving party before the Effective Date without restriction as to use or disclosure;

b)  was in the public domain on or before the Effective Date;

c)   came into the public domain after the Effective Date through no fault of the receiving party;

d)  was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or

e)  is divulged pursuant to any legal proceeding or otherwise required by law, subject to the receiving party giving all reason-able prior notice to the disclosing party to allow it to seek protective or other court orders and provided that the receiving party uses best efforts to make such disclosure under conditions of confidentiality.

(iii) The Client hereby grants to Lanteria a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required for the performance of the Lanteria obligations and the exercise of the Lanteria rights under this Agreement. The Client also grants to Lanteria the right to sub-license these rights to its hosting, connectivity, telecommunications and other service providers required for the performance of the Lanteria obligations under this Agreement.

(iv) The Client and Lanteria shall comply with the Data Protection Laws with respect to the processing of the Client Data.

Marketing Materials

(i)   Lanteria can use the Client’s name in its marketing materials, unless otherwise agreed by the parties. Lanteria will not disclose any information about the Client other than that information which is agreed to between Lanteria and Client or publicly available through the Client’s website and/or other public sources.

(i)  Lanteria can use the Client’s name in its marketing materials only with Client’s express written approval. Lanteria will not disclose any information about the Client other than that information which is agreed to between Lanteria and Client or publicly available through the Client’s website and/or other public sources.

(i) Clients who complete a successful implementation of Software may be eligible for our marketing discount. Eligible Clients may be invited to complete a Website Reference Statement for Lanteria or a case study describing the Client’s project. Eligible Clients may receive an email explaining the terms and conditions of the marketing discount. This discount is not guaranteed and eligibility is subject to the discretion of Lanteria.

  1. Ownership

(i)  The Client shall own all rights, title and interest in and to all of the Client Data stored in the Platform and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Client Data.

(ii) All rights, title and interest in and to all intellectual property rights in the Platform and Software are owned or held exclusively by Lanteria or its licensors. The license granted to the Client does not convey any rights in the Platform or Software, express or implied, or ownership or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by Lanteria.

(iii) The Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Lanteria or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

(iv) Lanteria may collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Lanteria will be free (during and after the term hereof) to: (i) use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Lanteria offerings, (ii) use such information and data to assess license usage and module access to ensure Client’s use is in compliance with the terms of this Agreement, and (iii) disclose such data solely in aggregate or other de-identified form in connection with its business. Client will be required to pay for additional licenses for any assessment showing Client has accessed unlicensed services or has activated more employees than licensed.

  1. Breach & Damages

(i)    A violation of any term of this Agreement may result in a breach of contract.

(ii)    In the event of breach of any term of this agreement, the breaching party shall owe the non-breaching party for any and all related damages arising out of the breach, as well as resulting litigation expenses and attorney’s fees. If the Client breaches this Agreement by sharing or allowing Lanteria’s Intellectual Property or other Confidential Information to be shared, the Client shall be responsible for the lost earning capacity of that Intellectual Property and/or Confidential Information, as well as damages, litigation fees and attorneys fees.

  1. Warranty and Liability

(i)   SOFTWARE WARRANTY. THE SOFTWARE IS LICENSED “AS IS.” THE CLIENT BEARS THE RISK OF USING THE SOFTWARE. LANTERIA GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, LANTERIA EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. 

(ii)   Limited warranty. The Software, Services, and accompanying written materials (including instructions for use) are provided "as is," except that Lanteria warrants: Lanteria owns, or licenses from third parties, all rights in or to the software.

(iii)   Except as set forth herein, Lanteria does not warrant, guarantee or make any representations regarding the use, or the results of use, of the software or written materials in terms of correctness, accuracy, reliability, timeliness, or otherwise. The Client assumes the entire risk as to the results and performance of the Software.

(iv)   Lanteria does not warrant that the Software will meet your requirements, that operation of the Software will be uninterrupted or error-free, or that all Software errors will be corrected.

(v)   Lanteria is not responsible for problems caused by changes in the operating characteristics of computer hardware or computer operating systems that are made after the release of the Software, nor for problems in the interaction of the Software with non-Lanteria software.

(vi)   The Software is intended for commercial, institutional, and industrial users. The above warranties are exclusive and in lieu of all other warranties, whether expressed or implied, including the implied warranties of merchantability and fitness for a particular purpose. No oral or written information or advice given by Lanteria, its employees, distributors, dealers, or agents shall increase the scope of the above warranties or create any new warranties. Except for the infringement of the third party intellectual property rights or a breach of confidentiality owed to the Client, neither Lanteria nor anyone else who has been involved in the creation, production or delivery of the software shall be liable for any direct, indirect, consequential, or incidental damages (including damages for loss of business profits, business losses, business interruption, loss of data, and the like) arising out of the use or inability to use the software, or any other claim by any party, even if Lanteria has been advised of the possibility of such damages.

(vii)   In the event Lanteria is found liable for any damages related to any claim, suit, or proceeding related to this Agreement, Lanteria’s liability for damages shall not exceed the total cost of all the fees paid by the Client to Lanteria for the 12 months prior to the act that gave rise to the liability.

  1. Indemnification

(i)   The Client shall indemnify and hold harmless Lanteria against any claim, suit, or proceeding related to the Client’s use of the Software, including but not limited to wrongful purposes such as illegal or unlawful purposes (including but not limited to local, State and Federal laws), propagating malware, redistributing or transferring Software to a third party, or any other similar purpose.

(ii)   The Client shall indemnify and hold Lanteria harmless against any claim, suit, or proceeding related to the Client’s loss of business or confidential information due to third party actions such as illegal or unlawful activities, malware, hacking, or any other similar breaches of reasonable security measures.

  1. Entirety of Agreement

(i)   The parties acknowledge that there are no written agreements, contracts, representations, warranties, inducements, or under-standings between them and pertaining to Software except as set forth and referred to in this Agreement. This Agreement is the entire agreement between the parties and supersedes any previous agreements, negotiations, discussions, and written instruments.

  1. Choice of Law

(i)   This Agreement shall be interpreted, construed, and enforced according to the laws of the

State of Washington, USA.

  1. Choice of Venue

(i)   The parties hereby submit to the jurisdiction of the courts of King County, Washington, for any legal action arising out of this Agreement or the performance or non-performance of their obligations under this Agreement.

  1. Severability; Waiver

(i)   If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated. The waiver by Lanteria of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

  1. Notices 

(i)    All notices and requests related to this Agreement shall be made in writing and delivered to the recipients address or email as listed on the front page of this Agreement. To be effective, notice must be delivered by certified or registered mail, courier or email. Notice will be effective after 3 days if sent by mail, 1 day if sent by courier, and upon receipt if sent by for email.

(ii)   The email address for Lanteria and Client shall be as follows:

Lanteria: [INSERT EMAIL}

Client: ____________________

  1. Assignment/Transfer Prohibited

(i)   This agreement is between Lanteria and the undersigned the Client.  The Client has no rights to assign or transfer this agreement to any third party without the prior written consent of the Lanteria.  Lanteria, however, may assign or transfer any and all rights contained herein.

  1. Attorney’s Fees

(i)   If any suit, proceeding, or action is brought to enforce or defend the terms of this agreement, the prevailing party will be entitled to attorney’s fees and court costs in addition to any other relief granted.

  1. Dispute Resolution

(i)   Any controversy or claim arising out of or relating to the ownership or infringement on the ownership of Lanteria’s Software and/or Platform shall be settled in the courts of King County, Washington.

 

(ii)   Any other controversy or claim arising out of or relating to this Agreement shall first be submitted to mediation. Both parties to this Agreement hereby agree to make a good faith effort to settle any dispute not covered in section (i) of this Dispute Resolution provision in mediation.

(iii)   If mediation fails or both parties agree to forgo mediation, then any remaining controversy or claim arising out of or relating to this Agreement shall be resolved by binding arbitration. The Client acknowledges that the Client waives any and all right to litigation in a court of law or trial by jury, and shall be required to settle a dispute in binding arbitration.

  1. Survivability Clause

(i)  The following sections and articles shall survive the expiry or termination of this

Agreement:

a)   Section 3 – Payment Terms; b)  Section 5 – Confidentiality; c)   Section 6 – Ownership; d)   Section 8 – Warranty and Liability; e)   Section 9 –  Indemnification; and f)  such definitions and terms and conditions in this Agreement that are necessary to give effect to the foregoing sections and articles.

Each party designates with their signature below that they have fully read the terms of this Agreement and that they understand, agree to and accept the terms of this Agreement.

Client:                                                         Lanteria:

X                                 X                               

    Name:                                                                         Name:

    Title:                                                                           Title:

    Date:                                                                           Date:

Service Level

(i)  Support questions can be submitted through e-mail, phone or support portal. Support is available:

  • North and South America: Monday-Friday 9:00 AM – 6:00 PM Eastern Time Zone.
  • Other Regions: Monday-Friday 8:00 AM – 6:00 PM Greenwich Mean Time Zone.

 (ii)  The processing of questions and problems will be handled according to the following priority:

Category

Description of the Problem

Response Time

Critical

  • Whole system down or not accessible; and/or
  • Significant data corruption or loss (all employees affected).

Four (4) Business Hours

High

  • A critical documented function is not available and there is no acceptable workaround.

Eight (8) Business Hours

Medium

  • A minor function is not available or there is a workaround in place;
  • Client request for information about mission critical function that blocks Client’s operation.

Two (2) Business Days

Low

  • Client requests information or clarification about non-critical function;
  • Client requests an enhancement or change to the Software.

Four (4) Business Days

Support Process

(i)  For support questions, incidents, potential software errors and change requests, the following process shall apply:

(a) Registration: The Client’s defined contact person can forward a support message by Telephone, e-mail or portal.

(b) Confirmation: Automatic feedback with: our estimated feedback time, e-mail address, and the present condition of the portal.

(c) Implementation: The assigned support engineer will take the message into consideration and will provide a fitting solution. If necessary, the support engineer will contact the Client.

(d) Completion: The message is settled. The feedback, including the description of the solution, will be sent out by e-mail or portal. The time used to provide support will be deducted from the support agreement total. Lanteria will round upwards in quarters of an hour. In case of an application error that occurred due to reasons other than those described in section 2.2.2 (ii) of this Agreement, the time used will not be deducted from the support agreement.

Support Cases Classification

Billable requests or tasks

All support issues or tasks are considered billable unless the software support representative handling the request determines them to be non-billable. See the billable issues or tasks examples below:

(i)   General “how to” questions.

For example: “How do I create an employee”, “How do I associate an employee with the account”, “How do I grant proper access to an employee”, “How do I change employee’s position”, “How do absence calculations work”, etc. To avoid spending billable hours on these types of questions please refer to the Lanteria Knowledge Base (http://Support.Lanteria.com)

(ii)  Requests to perform additional configurations

For example: requests to import additional data, bulk changes of the existing data, changes in default permissions, adding new absence plans, configuration of new performance review templates/steps, approval workflows, HR processes, vacancy stages, interview forms, creation of custom reports with the Report Generator tool, enabling notifications/reminders, changes in the recipients or other configurations of the notifications/reminders, installation/configuration of Applicant Self Service functionality, changes in design (done using .CSS/JavaScript by Lanteria engineers), etc.

(iii) Errors caused by third-party customizations.

For example: Custom mechanism that modifies salary details in the system provided by a third- party vendor or developed by the Client’s company, third-party SharePoint solution deployed to Lanteria web application, etc.

(iv) Errors in SharePoint, SQL or other software/hardware that affects the system

For example: SQL server is out of memory/free disk space, SharePoint server is out of memory/free disk space, antivirus software installed to the server consumes all available resources, AppFabric cache is not configured properly, administrative permissions are not configured properly (missing permissions for system accounts, expired passwords, etc.), limit of application pools or web applications or thresholds exceeds Microsoft recommendations, other violations of Microsoft recommendations.

(v)  Mistakes or misconfigurations done by Client’s representatives

For example: Employees receive messages that an account is not associated with an employee record or that account is associated with multiple employee records, default lists/fields/site pages deleted by Client, required data deleted by Client, data loops (Employee A is set as a manager for Employee B while Employee B is set as a manager for Employee A), Organizational Units, Job Positions, Goals in loop, no/multiple LCY currency, no/multiple default absence plans, etc.

(vi) System Upgrades in order to deliver new functionality

For example: Lanteria announces new version release and in order to deliver these new features to the Client a Software Upgrade is required.

Non-Billable issues

Non-billable Incidents include those related to a software problem within our product. See the non- billable issues categories below:

(i)   Application Errors

For Example: Fixing errors in the core software code is non-billable for a Client.

(ii)  Software Updates intended to fix software errors.

For Example: In case a Software Update is required due to a Software error or a need to install a hotfix, this service is non-billable for a Client.

(iii) Mistakes or misconfigurations done by Lanteria support team member.

For Example: In case of mistakes or bugs caused by Lanteria team when implementing a billable request, fixing of that will be non-billable for a Client.

Requests out of SLA scope

Some requests are not covered by this Agreement and require purchasing additional services, this includes but is not limited to the following:

    • Implementation of additionally purchased modules;
    • Software migration to another server;
    • Software Upgrade to another version of SharePoint;
    • Moving Software to a new cloud server; or
    • Addition to, or modification of the standard “out-of-the-box” functionality that requires custom development or custom solution.