2011-11-14_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentairer
1 g,
City of Saint John
Common Council Meeting
Monday, November 14, 2011
Location: Common Council Chamber
Supplemental to Agenda
5.3 Change in Contract to Performance Management Software
City of Saint John
Seance du conseil communal
le lundi 14 novembre 2011
Lieu: Salle du conseil communal
Ordre du jour suppl6mentaire
5.3 Changement de contrat de logiciels de gestion des performances
53 REPORT TO COMMON COUNCIL
November 14, 2011
His Worship Mayor Ivan Court and
Members of Common Council
Your Worship and Members of Council:
Subject: Change in Contract for Performance Management Software
BACKGROUND and ANALYSIS
On January 4`", 2010, the City entered into a three year agreement with Corpnet Infohub Ltd.
under which the latter agreed to provide performance appraisal software known as SonicPerform
that was, until recently, used by the City for the purpose of evaluating employee performance.
SonicPerform was instrumental in the start up and continuation of performance management for
the organization. During the second year of this contract, however, Corpnet Infohub Ltd. was
acquired by Taleo Canada Inc. ( "Taleo ").
As of September 2011, SoniePerform was discontinued and Taleo began migrating users to a
new performance appraisal software platform. Taleo offers performance appraisal software that
is very similar to SonicPerform and is able to transfer all existing data from SonicPerform to its
new system. Moreover, Human Resources has negotiated a new agreement with Taleo that will
bring the existing agreement with Corpnet Infohub Ltd. to an early end. Under this new
agreement, Taleo has agreed to continue providing performance appraisal software to the City
for a term of three (3) years commencing on January 4`h, 2012 at a fixed cost of $8,400 per year
plus HST (which guarantees the City the same price it has paid for the last two years with
Corpnet Infohub Ltd.).
INPUT FROM OTHER SOURCES
The City Solicitor's Office has reviewed the attached contract from a legal perspective. The
Information Technology Department has reviewed the new Taleo performance appraisal
software from a technical/operational perspective and the Common Clerk's Office has reviewed
audits that have been carried out regarding Taleo's privacy and records management practices
and has made appropriate follow -ups respecting same.
RECOMMENDATION:
That Common Council authorize the Mayor and Common Clerk to execute the agreement
between the City and Taleo Canada, Inc. respecting performance appraisal software in the
attached form.
Respectfully submitted,
C�. u -- (�Of
John McIntyre, CHRP zj'�
Manager, Human Resources
Patrick Woods, CGA
City Manager
Encls.
Taleo > 131J.31141—S", FDIIION
SALES ORDER FORM
This Order Form executed by Taleo Canada, Inc. and Customer named below, is effective as of the EDO (defined below) and hereby incorporates and is governed by
the terms and Conditions mutually executed by the parties ("Agreement). Invoicing will begin as of the Billing Start Date (set forth below) and this Order Form and wil
renew automatically upon the same terms and conditions, including fees set forth in the Order Form, for one (1) year periods unless: (i) either party requests change of
termination thirty (30) days prior to the expiration of the then - current term of this Order, or (H) otherwise stated in the Agreement Taleo will not be bound by any
Customer handwritten changes to this Order Form unless mutually agreed in writing as indicated by Taleo's initialing of the Customer handwritten change or Taleo's
execution of this Order Form after the date of Customer's handwritten change_
M Customer Information
End Customer Name:
City of Saint John
Billing Contact:
Brian Woods
Phone:
(506) 649-7950
Email Address:
brian.woods @saintjohn.ca
Street Address:
15 Market Square
City:
City of Saint John
Payment Terms-
NB
�State/Province:
ZipfCountry Code:
E21- 1E8
Country:
Canada
SF13C Opportunity:
TBE -City of Saint John - PM
Agreement InformatI913
Account Executive:
Ron Wenger
Quote Number.
Q20110611 -11290
Quote Type:
Renewal
Effective Date of Order C EDO" ): 4- Jan -2012
Tenn of Order Form:
EDO through 3 -Jan -2015
Will Customer Issue Separate PO? NIA
PO Number.
Payment Terms-
Net 30 days from receipt of invoice
Currency of Order Form:
CAD
SOF Name:
CityulSain 14-2012 REN a1G700000DOLYvF
'Talon may consider' his quote not valid it recefved by Tateo
after'. 30- Sep -20 i 1
fl em # Product/Service Description SKU Code
PERIOD 1: 4-Jan -2012 to 3 -Jan -2013
TOE Perform - Group license for up to!) Active Users. 200 Managers. TL- 2- SA-015
' for up to 550 employees (1)
2 TBE Competency Pack - Government (1 @250.001 Year) TL- 2- SA-045
TOTAL RECURRING FEES FOR PERIOD (EXCLUDING TAXES):
PERIOD 2: 4- Jan -2013 to 3 -Jan -2014
TBE Perrone - Group License for up to 9 Active Users. 200 Managers.
1 for up to 550 employees (1) TL -2 -SA -019
2 TBE Competency Pack - Government (1 0250.001 Year) TL -2 -SA -045
TOTAL RECURRING FEES FOR PERIOD (EXCLUDING TAXES):
PERIOD 3: 4-Jan-2014 to 3- Jan -2015
1 TBE Perform - Group License for up to 9 Active Users. 200 Managers. TL-2-SA-01 9
for up to 550 employees (1)
2 TBE Competency Pack - Government (1 @25D.o01 Year) TL -2 -SA -045
TOTAL RECURRING FEES FOR PERIOD (EXCLUDING TAXES):
ONE -TIME FEES
1 Professional Services - Acquisition Perform Data Migration (1) PPU- 2- CO-006
2 Setup Fee (TBE Perform [TL-2-SA-0421)
TOTAL ONE -TIME FEES (EXCLUDING TAXES):
TOTAL ORDER VALUE (EXCLUDING TAXES):
Billing Cycle Billing Start Date Fees (Excl. Taxes)
Aimuai 4- Jan -20ia 8,400.00
Annual 4 -Jan -2012 INCLUDED
8,400.00
Annual 4 -Jan -2013 8,400.00
Annual 4 -Jan -2013 INCLUDED
8,400.00
Annual 4-Jan-2014 8,400.00
Annual 4- Jan -2014 INCLUDED
8,40D.56
One -Time 4- Jan -2012 0.00
One -Time 4-Jan -2012 INCLUDED
0.00
25,200.00
U
Leal Notes
1_The parties agree that the duly executed terms and conditions will govern for the term of this agreement.
2.From the date of this order form forward, this order form supersedes and replaces all previous agreements
and order forms entered into by Customer and Cytiva, Inc. or any of its subsidiaries. Customer is responsible
for paying fees for the period up to the effective date of this order pursuant to the agreements governing
such prior periods. Taleo will issue a credit to Customer on a daily prorated basis for any prepaid fees
associated with periods after the effective dale of this order that were paid pursuant to agreements with
Cytiva, Inc. or arty of its subsidiaries prior to this order form.
13. Consulting Implementation Packages expire 12 months from the contract start date_ The following
Professional Services expire 180 days from the contract start date: Education Services, Technical Services,
Hourly Services and Post - Implementation Packages.
In order to cancel a scheduled Professional Services meeting, Taleo requires a minimum of 24 hours' notice
to the assigned Taleo consultant. Notice can be given via email or phone call. If more than 1 meeting is
canceled or missed without 24 hours advance notice, Taleo reserves the right to charge the current hourly
Professional Services rate to cover the missed meeting time.
For purposes of clarity, Customer's data will be hosted on servers located within Canada for the
duration of the term.
CounterparTs
This Order Form may be executed in counterparts and may be exchanged by facsimile or electronically scanned copy exchanged via email, each of which sha11
deemed to be an original and all of which together shall constitute one and the same Order Form_ This Order Form may also be executed via electronic signatt
pursuant to 15 U_S.C. Ch. 96 (and other relevant e- signature legislation). Electronic signatures will appear at the bottom of the page. The authorized representatives
the parties have executed this Order Form by their signatures below:
City of Saint John
Mayor.
Common Clerk:
Resolution Date:
Taleo Canada. InG
Signature:
Name: Josh Faddis
Title: Senior Vice President, General Counsel
Tales > HUSINESc, E1)ITI ON
Taleo Business Edition
General Terms and Conditions
'('his agreement is entered into by and between the Tnleu entity set forth in the Order Dorm executed by Customer ("Taleo") and the party named in the
End Customer Name section of the Order Dorm (`Customer') and describes the terms and conditions pursuant to which Taleo will provide products and
services to Customer (°`Agreement').
1 Term of Agreement and Rencwal.
1.1 The term of this Agreement is as set forth in the Order Form ( "Term's. The capitalized word "Term" means the Initial and any Renewal
Terms.
2 Termination and Expiration.
2.1 Material Breach. Either party may terminate this �lgreernent upon 30 days prior written notice in the event of a material breach that is not
cured (or, discontinued with appropriate changes made to ensure that it is not repeated) within thirty (30) days after notice. Upon the expiration
or termination of the Agreement:
(i) Customer may retrieve a copy of their data hosted by Taleo,
(u) Customer must cease all use of die Software with the exception of data retrieval as described above, and
(fii) Taleo may disable all other portions of the Software for which Customer's usage rights have been terminated or which have
expired.
2.2 Taleo may delete any Customer data in Taleo's possession (including candidate data) that is not retrieved by Customer within thirty (30) days of
expiration or termination of this Agreement.
Software Usage Rights. For the term of the Agreement, Taleo grants to Customer a limited, non - transferable, non - exclusive right to access and use
its proprietary, Taleo commercially available, hosted software products and related documentation ( "Software') via a web browser for Customer's
internal business use. The Software is made available to Customer as a hosted service ("Service'_ Taleo hosts and retains physical control over the
Software and only makes it available for access, and use by Customer over the Internet through a Wet- browser (e.g., Internet Explorer). Nothing in
this Agreement obligates Taleo to deliver or make available any copies of computer programs or code from the Software to Customer, whether in
object code or source code form. Customer may not wnt, lease, distribute, or resell the Software, or use the Software as the basis for developing a
competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices,
confidentiality or proprietary legends or other notices or markings that are on or in the Software.
4 Order Form. The Software ordered by Customer must be listed in a duly executed order ("Order Form') that specifies the fees and payment terms
for use of the Software. Each Order Form during the'l'crm is governed by the terms of this Agreement and in the event of a conflict, discrepancy or
inconsistency between the terms of an Order Form and the terms of the Agreement, the Agreement governs except as to products /services
purchased, fees, currency, or payment terms, for which this Order Form governs. This Agreement may be amended via the legal notes section of an
Order Form.
5 Use of the Software by "Third Parties on Customer's Behalf.
5.1 Third -Party Contractors. Customer may only make the Software available for use (within the usage limits of this Agreement), by Customers
third -party contractors to assist in Customer's staffing efforts ("Third -Party Contractor°. Customer is responsible for all usage and compliance
with this Agreement by'1'hird -Party Contractors. Any password(s) provided to a Third -Party Contractor must be disabled immediately upon
conclusion their work for Customer.
5.2 Competitors. Customer may not grant access or use of Customer's instance of the Software to employees of the following companies (or a
successor in interest to the following companies)_ ADP (formerly Virtual Edge), Authoria, blackboard, Business Training Library, Certpoint,
Cornerstone OnDcmand, Deploy, First Advantage HMS, Geol- earning, GeoAletwc, Halogen, Hiring Manager Web, HRNIDirect HRSmart,
ICTNIS, IAIC: (based in Germany) jobPlanct, Jobvite, Kencxa (formerly BrassRing or Webllire), Kronos (formerly Unicru or Deploy), Monster,
Mr. Ted, myStaffmgPro.com, Neo(;uv, NctDimensions, OutStart, Oracle, Pageup, PCRecmiter, PeopleAdmin, Peopleclick, Plateau,
Position\lanager by Healthsource, RerrultASP, Recruiting Solutions by Ccridian, Saba, S:VI, Silkroad 'Technology file., SutnTotal, Stepstone,
Succesfactors ,'I'alent'lcchnology (NireDesk). Mdeo may amend the preceding list upon notice to Customer.
6 Ethical Hacks and Robots. Unauthorized use of a Robot with the Software for any purpose is a material breach of this Agreement. Customer
may not (without Take's prior written consent), and may not allow any employee or consultant working on Customer's behalf to:
@ perform any technical security integrity review, penetration test, load test, denial -of- service simulation or vulnerability scan ("Ethical
Hack'),
(n) attempt to access the data of another'1'aleo customer, or
Taleo Confidential
v.11.09.21
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OR) use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as
"Robots ") in conjunction with the Taleo Software (whether a production or non - production instance of the Software).
7 Support Policies. Talco will provide support in accordance with Taleo's then current support policy, which may be acquired from Customer's Talco
contact. Taleo hosts and maintains the Software and all Customer and candidate data uploaded to or entered into the Software in accordance with
these policies and reserves the right to make changes to them and its hosting and technical infrastructure, provided such changes do not materially
degrade the overall level of hosting services provided to Talco customers.
8 Updates and Upgrades.
8.1 Talco will, make updates and upgrades to the Software available to Customer as such updates and upgrades are released. Updates and upgrades
in software versions are made available free of charge.
9 New Products. New products will not be provided to Customer as part of maintenance and support. Taleo may charge additional fees for new
products and Customer may choose whether or not to purchase new products at Customer's sole discretion if 'Palen removes any features or
functionality from the software and subsequently offers those features or functionality in a new product (whether directly or indirectly or through a
third party), then the software provided pursuant to this Agreement will be deemed to include: (i) the portion of those new or different products that
contain the original features or (i) if those features cannot be separated out, the entire product.
10 Confidential Information.
10.1 Definition. This .agreement may provide for either party to access informatinn and materials concerning the other party's technology business,
plans, and customers that are confidential and of substantial value to such party, which value would be impaired if such information were
disclosed to third parties ("Confidential Information').
10.2 Taleo Confidential Information. Confidential Information of Taleo includes, without limitation, information specifically designated as
confidential, the features and functions of the Software that arc not available to the general public via the public internet (including screen shots
of the same), future product plans, any documentation or specifications provided to Customer, the commercial terms (including pricing) of this
Agreement but not the mere existence of this Agreement, any Order Forms, SOWs, performance and security test results (whether conducted
by Taleo or Customer), and any other proprietary, financial or business information supplied to Customer by Taleo.
10.3 Customer Confidential Information. Confidential Information of Customer includes, without limitation, information: (t) specifically
designated as confidential, (ii) uploaded to the Software by a Candidate, or Customer employee, and (u) Customer business information
uploaded to the Software.
10.4 Use. Each party will not and will ensure that its employees, agents and contractors will not make use of (except in furtherance of the
Agreement), disseminate, or in any way disclose any Confidential Information of the other party to any person, firm or business, except for any
purpose the disclosing party may hereafter authorize in writing. Each party will treat all Confidential Information with the same degree of care as
it accords to its own Confidential Information, and represents that it exercises reasonable care to protect its own Confidential Information-
Upon request by Customer or Taleo, the other party must advise whether or not it considers any particular information or materials to be
confidential. In the event either party receives notice that disclosure of Confidential Information may be required pursuant to administrative or
court order, government or regulatory requirement, or similar process, such party shall notify the other party as soon as reasonably possible so
that the other party may seek a protective order or similar remedy.
10.5 Exclusions. Notwithstanding the foregoing, "Confidential Information" does not include information:
@ Previously known to the receiving party without reference to Confidential Information,
n which is or becomes publicly known through no act or omission of the receiving party,
which has been independently developed by the receiving party without reference to the disclosing party's Confidential Information,
(Iv) Received from a third party under no confidentiality obligation with respect to the Confidential Information, or
(v) which is required to be disclosed pursuant to administrative or court order, government or regulatory requirement or arbitration or
litigation arising out of this Agrec•.ment.
11 Intellectual Property.
11.1 Customer Ownership. Customer retains all right, title and interest to all data uploaded to the Softvarc by Customer employees or Customer
job candidates.
11.2 Taleo Ownership. Talco retains all right, tide and interest in and to:
(r) the Softvare, the documentation for the Software, and all modifications and /or enhancements to its Software, regardless of the
source of inspiration for any such enhancement or modification and regardless of whether Customer has provided input regarding
such modifications and /or enhancements.
Taleo Confidential
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(1? transactional and performance data related to use of the Software which Taleo may collect and use for its business purposes provided
that such use does not reveal the identity of Customer or any personally identifiable candidate information that belongs to Customer_
11.3 Deliverables. With respect to custom developed documents, designs, computer programs, computer documentation and other tangible
materials authored or prepared by Taleo for Customer ("Deliverables' as required by an SOW or otherwise, Customer has a non - exclusive,
nontransferable, internal use, object code license to use such Deliverables for Customers internal business purposes during the Term. The
Software, proprietary training content and any'laleo services purchased on an Order form is not considered Deliverables (as that term is used in
this Section) and Taleo retains all right, title and interest in and to these items. This Section does not obligate Taleo to license, transfer or
provide to Customer any third party product or service required to operate or take advantage of any Deliverable.
12 Taxes.
12.1 General. All payments, fees and other charges payable by Customer to Taleo under this Agreement are exclusive of all federal, state, local and
foreign taxes, levies and assessments. Customer is responsible for the payment of all such taxes, levies and assessments imposed on Customer
or Taleo arising out of this Agreement, excluding any tax based on Talco's net income.
122 Foreign Consulting Services. For Customer's purchasing Consulting Services to be performed outside the United States, if Customer is
required by any applicable law to deduct or withhold amounts otherwise payable to Taleo hereunder, Customer will-
(i) pay the required amount to the relevant governmental authority, and
(u) pay to Taleo, in addition to the payment to which '1'alco is otherwise entitled under this Agreement, such additional amount as is necessary
to ensure that the net amount actually received by Taleo free and clear of all taxes equals the full amount Taleo would have received had nn
such deduction or withholding been required.
12.3 Tax Exempt. If Customer is tax- exempt, Customer will either provide Taleo with its tax exemption certificate or relevant legal authority
establishing its tax exempt status.
13 Late Payment. Talco may suspend Customer's access to the Software and Hosting Services in the event any undisputed amounts due hereunder are
not paid within thirty (30) days of notice that payment is past due until payment is made.
14 Taleo Warranties. Taleo represents, warrants, and covenants as follows:
@ Taleo possesses all rights necessary to grant to Customer the rights set forth in this Agreement;
Taleo incorporates commercially reasonable measures to screen for time - bombs, viruses, technically limiting devices, and /or
technically limiting code (software enabling Talco's remote access for purposes of conducting support services will not be- considered
disruptive code for purposes of this section);
(iii) the Software will perform substantially in accordance with the user manuals and /or technical requirements documents that are
generally provided by'laleo in connection with the Software ("Documentation's In the event of a breach of the foregoing warrant,
Talco's sole obligations, and Customer's sole remedy, shall be, at Talco's option, to use commercially reasonable efforts to correct the
Software or replace the Software Free -of- charge; and
(iv) Consulting Services will be performed in a professional, workmanlike manner, with the degree of skill and care that is required by
sound professional procedures and practices.
15 DISCLAIMER OF WARRANTY. TAT.1:0 IIEREBY DISCAiAIS AU IMPLIED WARRAN'1'IT'S OF MERCIIANTABILITY AND
FITNI�.SS FOR A PARTICULAR PURPOSE WITII I; ESPEC'1' '10 'T'IIE SOFTWARE,, DOCUM N'1'A'1TON, DELIVERABLES AND
OTHI'R NfiVI'ERIAiS AND /OR SI :RVICES. TALEO DOES NCYI' WARRANT THAT OPFRATION OF THE SOFTWARE IS ERROR-
FR I I,? OR TIIAT ITS OPERA'T'ION W111.1317 TJNINTERRUP'1'1 `-D.
16 LIMITATION OF LIAMITY. IN NO EVENT WIIJ, RIMER PARTY BI? LIABLP, FOR ANY INDIRECT, C0NSISQUI+,N'1'IAL,
SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGRE- EMENT. ME AGGREGATE LIA1311,11'Y OF
Ei'1TIER PARTY TO THE O'I'LIER W1TII RLSPFC`l '1'O TIIIS AGREENII.:NT IS LINITTED, TO TIIE EXTENT POSSIBIJ; UNDER
APPLICABLE LAW, TO THE FRS COLLECTED BY TAId:O FROM CUSTOMER PURSUANT TO TIIIS A(;REE14ENT IN Till;
'IVELVf. MONTIIS PI(ECHDING THE. IMPOSITION OF 1.IABILTIY
17 Infringement Indemnity.
17.1 Talco Obligations. Taleo will, at its expense, defend or at its option, settle any claim brought against Customer that the Software or any
Deliverable infringes any copyright, patent trade secret, or any other proprietary right of any third party and will pay any final judgments
awarded or settlements entered into; provided that Customer gives prompt written notice to 'F Lo of any such claim and givers Taleo the
authority to proceed as contemplated herein.
17.2 Exclusive Right to Defcad. Talco has the exclusive right to defend any infringement claim and make settlements thereof at its own
discretion, and Customer may not settle or compromise such claim, except with prior written consent of Taleo. Customer must give such
assistance and information as Talco reasonably requires.
Taleo Confidential
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17.3 Infringement Remedies. In the event any infringement claim, action or allegation is brought or threatened, Talco may, at its sole option and
expense.
(t) procure for Customer the right to continue use of the Software or infringing part thereof,
(u) modify, amend, or replace the Software or infringing part thereof, with other software having reasonably comparable capabilities; or, if
neither of the foregoing is commercially practicable,
(iii) terminate this Agreement and refund to Customer the prorated amount of the fees prepaid by Customer that were to apply to the
remainder of the unexpired Term, as calculated from the termination date through the remainder of the unexpired 'Perm.
17.4 Exclusions. The foregoing obligations will not apply to the extent the infringement arises as a result of:
(i) any use of the Software in a manner other than as specified in this Agreement;
(H) any use of the Software in combination with other products, equipment, devices, suftvare, systems or data not supplied by Taleo to the
extent such claim is directed against such combination; or
(iii) any alteration, modification or customiTation of the Software made by any party other than Taleo or Taleo's authorized representative if
such infringement would not have occurred without such modification or combination.
17.5 Entire Liability. Section 17 states the entire liability of Taleo with respect to infringement of any patent copyright, trade secret or other
intellectual property right.
18 Data Privacy Indemnity. In the event of a security breach, both parties agree as follows:
18.1 Extcwal_Breach — In the event of a security breach by anyone other than a Customer employee or Third -Party Contractor,') aleo will
immediately:
initiate remedial action~ that arc consistent with industry standards;
ii. notify Customer in writing of the security breach, its nature and scope, the nature and scope of remedial actions Taleo will undertake, and
the timeline within which Talco expects to remedy the breach; and
iii. in the event the cause of the security breach can be determined and the security breech resulted from Taleo's breach of this agreement or
Taleo 's failure to maintain at least industry standard security measures, Talco will:
a. notify, at its expense, the relevant data subjects or any other individuals /agencies of the breach where such notification is required
by law ("Notification') and
b. indemnify, defend and hold harmless Customer against any third party claims arising from the security breach;
182 FxcTption — Taleo is not obligated to pay for any Notification or indemnify to the extent that the security breach arises from:
Customers negligence or willful misconduct, including, without limitation, Customers employees or Third -Party Contractors disclosing
passwords;
Customer's failure to maintain reasonable password security;
iii, theft or loss of a Customer computer or other device containing personally identifiable information, or
iv. any Customer employee or third party contractor conspiring with any a third parry in securing unauthorized access to Customer. Data;
18.3 Internol, Dmrh — in the event of a security= breach by a Customer employee or Third -Party Contractor, Company will maintain responsibility
for initiating remedial actions and notify Taleo of the breach and steps it expects to take to remedy the breach promptly after becoming aware of
same.
18A R3UPA— Taco acknowledges that Customer is bound by the New Brunswick Right to hn vmatlon and Pivtertiou of Prroag Aa (the "It TiPP.t').
Accordingly, Talco agrees to promptly assist Customer in the event that anything is required of Customer to meet its obligations under the
WITPP.1.
18.5 Talco Pdyacy Prapfict&7- Taleo agrees they are responsible for the security, confidentiality, integrity, and availability of Confidential
Information provided to'Taleo for the purposes outlined in this contract As such, "1 aleo shall, with respect to all systems, applications, networks,
or sites, used by Talco in transmitting, accessing; processing, or storing Confidential Information, ensure that the following measures are in place:
(c) 'Taleo will employ an information Security Officers (ISOs) and a Privacy Officer who will be responsible for Talco's information
security program and maintain it
(ii) 'Taleo will have implemented written information security policy that are approved by Senior Management, communicated to
appropriate constituents, appropriate to the nature and scope of its activities & services and designed, maintained, and updated
annually or as necessary, to reasonably address known risks to Personal Information. Consequences for non - compliance with
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these policies are documented within them_
(iii) As a requirement for a Talco employees continued access to Customer confidential information, Talco will have an annual and
auditable acknowledgments of Talco's information security policies.
(v) Hardware hosting the Software and processing the Customer confidential information will be located in a shared but
inconspicuous secured facility, manned on a 24/7/365 basis, with auditable access controls. All critical datacenter services will be
redundant and adequately maintained. Physical access to the datacenters hosting Customer confidential information will be
highly restricted, allowing access to only those individuals whose duties require such access. Talco will maintain a physical access
list and validate it on a monthly basis.
(v) The Software will be developed under strict security controls, leveraging Open Weh ,Application Security Project (OWASP) and
Web Application Security Consortium (WASC) guidelines. 'Ilse Software will be regularly tested for security vulnerabilities by a
reputable third party,
(vi) '17aleo will have adopted documented policy and procedures for incident management & response that have been approved by
management and communicated to appropriate constituents, and at least annually, Talco will retain an independent firm
competent in electronic data processing auditing to audit the accuracy, control and reliability of the operations and data
maintenance functions of Talco, based on SSAF 16 or equivalent. 'lAeo will furnish a copy of the latest available annual report,
upon request. Should the third party assessment result in the discovery of material security risLs to the systems, applications,
networks, or sites, used by Talco in transmitting, accessing, processing, or storing Confidential Information, Talco shall take
reasonable measures to promptly correct, repair, or modify the applicable system, application, network, or site to effectively
eliminate the risk.
19 Governing Law. UNI.ASS PROITTBrITsD BY LAW, Tf ITS AGRTTsA F-N"1' IS MADE IN ACCORDANCE WITII .IND IS GOZrI:RNFD AND
CON51RIJI?D UNDER '11M LAWS OF 'l'1 -IF, PROVINCE OP Ni;W BRUNSWICK IN NO EVEW AL-1Y 'ITIiS AGRT- ElvIF -Wl' BE
GOVI -.RN10 BY'MI UN1TI ?D NATIONS CONVISN "PION ON CON'IRAM'S FOR'lTrF TN'1TsRNA'1'IONAI. SAL1:01-' GOODS.
20 Compliance with Laws and Control Disclaimer.
20.1 Compliance with Laws. each party must comply with all laws, rule or regulations applicable to such party's activities in relation to this
Agreement, including export control laws of the United States which are applicable to the Software and which may prohibit use of the
Software in certain sanctioned or embargoed countries.
20.2 Legal Advice. Talco will not provide Customer with any legal advice regarding compliance with employment, data privacy or other relevant
Laws, rules or regulations in the jurisdictions is .which Customer uses the Software ("Laws "). The parties acknowledge and agree that not all
features, functions and capabilities of the Software may be used in all jurisdictions and Customer recognises that certain features, functions and
capabilities may need to be configured differently or not used in certain jurisdictions in order to comply with applicable local law, and in certain
jurisdictions consents may need to be obtained from individuals submitting data via the Software as to the intended purpose, storage,
distribution, access and use of the data submitted ("Local Use Decisions'. Customer is responsible for Local Use Decisions and 'I Aso
disclaims all liability for local Use Decisions.
20.3 Control Disclaimer. Customer admowledges that Talco exercises no control over the Customer specific staffing practices implemented
using the Sofhvare or Customer's decision as to employment, promotion, advancement, termination, or compensation of any job candidate
and /or employee ("Staffing Decisions'0. 7'aleo hereby disclaims all liability and damage arising from Staffing Decisions,
21 Exceptions for Public Sector Entities.
21.1 Definition. Public Sector Entity means any government entity or other government organization created by legislation to perform a public
purpose as described in the relevant enabling legislation or the articles of association /objectives of that organization.
21.2 Fiscal Funding. If Customer is subject to annual or biannual fiscal funding, Customer will work with Talco to align its subscription term to
Customer's budget and funding cycle. Customer will not contract with Talco for periods which are unfunded.
21.3 Termination for Lack of Funding. If Customer is a Public Sector Fritity, Customer may terminate this Agreement if Customer has failed to
obtain funding for a subscription period or has had f indirT revoked, in which case Customer will pay Taleo for all services rendered, including
payment of subscription fees to access the Talco solution on prorated basis_
21.4 Public Records Requests. Customer may disclose information pursuant to a public records request under applicable law. Unless prohibited
by law, if the information requested is '1'aleo Confidential Information, Customer shall notify Taleo of the public records request and give
Taieo a reasonable opportunity to establish that the'1'aleo Confidential Information is exempt from disclosure under one or more exemptions
under provincial law. If the information requested is not'l'aleo's Confidential Information, but Customer information stored within the Taleo
Service, Customer may utilize the Talco Service to retrieve and disclose such information but may not give the requestor direct access to the
Talco Service -
21.5 Prompt Payment Act. If Customer is classified as a Public sector entity, any undisputed late payments are subject to interest under
Customer's state prompt payment act, if any, or statutory interest on delinquent judgments if there is no prompt payment act providing interest
for late payments. Interest will be calculated on the outstanding balances.
14leo Confidential
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21.6 Governing Late. THE; PARTIVS AGREE TIIAT TIIE TALEO SERVICES ARF. RF:NAERT;D IN THE PROVINCE OF 'VT:W
BRUNSWICK. IN NO VVI ?NT 1IAY TI ITS AGREEMENT BE GOVERNI'D BY THI? IJNf1TD NATIONS CONV1?NTION ON
CONTRACTS FOR THIS INTERNATIONAL SALE OF GOODS.
22 Independent Contractors. Taleo is an independent contractor. Taleo's employees are not entitled to any employment rights or benefits from
Customer.
23 Waiver. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance
by the other party of any of the provisions of this Agreement, will not be construed to be a waiver of such provisions, or in any way affect the right
of either party to enforce such provision thereafter.
24 Merger and Amendments. This Agreement includes any schedules and exhibits attached hereto, and any mutually executed Order Fumns or
between Customer and Taleo. Such documents encompass the entire agreement between Customer and Talco with respect to the subject matter
hereof and supersede all prior representations, agreements and understandings, written or oral. This Agreement may only be altered, amended or
modified by duly executed written instrument
25 Severability. If any provision, or portion thereof, of this Agreement is or becomes invalid under any applicable statute or rule of law, it is to be
dccmcd stricken and the rest of the Agreement remains in full force and effect.
26 Assignment. Customer may not transfer or assign this Agrc cmcnt without'l'alco's prior written consent, including by operation of law or through
merger or acquisition. Notwithstanding anything to the contrary in this Agreement, 'Paler) may assign, novate or transfer any or all of its rights and
obligations under this Agreement to any'1 aleo Affiliate. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns. For purposes of this agreement, an Affiliate shall mean with respect to Customer, any entity
Controlled by, Controlling, or under common Control with Customer and with respect to Taleo, any entity Controlled by, Controlling, or under
common Control with Talco Corporation. For purposes of this Agreement, Control shall mean either the direct or indirect control of more than
50% of the shares or other equity interests of the subject entity entitled to vote in the election of directors (o:, in the case of an entity that is not a
corporation, for the election or appointment of the corresponding managing authority).
27 Survival. The provisions of this Agreement that are intended to survive termination or expiration of this Agreement in order to achieve the
fundamental purposes of this ,Agreement, including, without limitation, Sections 10 (`Confidential Information'), 15 C "Disclaimer of Warranty"), and
16 {"Limitation of Liability "), will survive.
28 Purchase Orders. This Agreement shall prevail over any inconsistent terms or conditions contained in, or referred to in, the Customers purchase
order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing. No addition to, variation of exclusion
or attempted exclusion of any term of the Agreement shall be binding on Taleo unless in writing and signed by a duly authorized representative of the
'Palen_
29 Execution. This Agreement may be executed in one or more counterparts and exchanged by facsimile or electronically scanned copy, each of which
is deemed to be an original and all of which constitute the same instrument.
The authorized representatives of the parties have executed this Agreement by their signatures below:
Taleo Corporation
By_ Mayor.
A cure
Common
Name: lush Faddis Clerk
Resolution
Title: Senior Vice President, General Counsel Date
Print Customer's Legal Name Below:
Tales Cenfidenlial
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