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HomeMy WebLinkAboutRes 06-42 Authorizing a Contract with Tyler TechnologiesTOWN OF WESTLAKE RESOLUTION NO. 06-42 A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, AUTHORIZING A CONTRACT WITH TYLER TECHNOLOGIES, INC., INCODE DIVISION, TO PROVIDE A SOFTWARE PROGRAM, A DEDICATED RECEIPT PRINTER AND CASH DRAWERS TO UPGRADE THE CASH HANDLING SYSTEM FOR THE MUNICIPAL COURT WHEREAS, Cash handling and financial accountability are an integral part of the Municipal Court office; and WHEREAS, The Town desires to process all Municipal Court payments in an accurate and expedient manner with the proper historical documentation; and WHEREAS, Tyler Technologies, INCODE Division, will provide a software program, dedicated receipt printer and secure cash drawer systems to the current Court software program for the Town of Westlake as indicated in Exhibit "A"; and WHEREAS, The cost of the agreement has been included in the adopted FY 2005/2006 amended budget and the annual maintenance fee will be included in the proposed FY 2006/2007 budget under the Municipal Court Technology Fund; and WHEREAS, the Mayor and other Board of Aldermen of the Town of Westlake, Texas, as well as the Town Staff, are committed to providing an accurate financial accounting of each payment and deem it to be of the utmost importance to the Town of Westlake and Tyler Technologies to actively participate and execute the Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION I: The above findings are hereby found to be true and correct and are incorporated herein in their entirety. SECTION 2: The Board of Aldermen of the Town of Westlake, Texas, hereby approves the Agreement with Tyler Technologies, Inc., INCODE Division, relating to the upgrade of the cash handling portion of the Court software, attached hereto as Exhibit "A"; and further authorizes the Town Manager to execute the contract on behalf of the Town of Westlake, Texas. PASSED AND APPROVED ON THIS 26" DAY OF JUNE, 2006. Scott Bradle , Mayor ATTEST: gan Dwinnell, Town Secretary Trent O. Petty, own a ger APPROVED AS TO FORM: • NO a r- =-1 Tyler Technologies, Inc. INCODE Division 5808 4th Street Lubbock, Texas 79416 (800) 646-2633 (806) 797-4849 Fax AND Town of Westlake 2650 Ottinger Road Westlake, Texas 76262 Phone: 817.490.5715 Fax: 817.430.0967 tylerworks. Tyler Technologies I INCODE Division This agreement is entered into by and between Tyler Technologies, Inc., INCODE Division, hereinafter referred to as COMPANY, located at 5808 4th Street, Lubbock, Texas 79416; and; hereinafter referred to as CLIENT on, 2006. COMPANY and CLIENT agree as follows: Town of Westlake 1. COMPANY shall furnish the products and services as described in this Agreement,. and CLIENT shall pay the prices set forth in this Agreement. 2. This Agreement consists of this Cover and the following Attachments and Exhibits: Section A Investment Summary (A-E) Section B INCODE Agreement Terms and Conditions Section C Exhibit 1 - Delivery Attestment 3. The License Fees set forth in the Investment Summary are based on defined category levels. Place- ment within a category is based on the size of the organization serviced and measured by such factors as operating budget, number of employees, number of utility accounts, number of sworn officers, population of the entity, etc. IN WITNESS WHEREOF, persons having been duly authorized and empowered to enter into this Agreement hereunto executed this Agreement effective as of the date last set forth below. Client: --IQ,--v-_n of Westlake By: Signature , rrn. Printed Name M�d Tit* Date I- 7S - 4 Sales Tax Certificate Number Tyler Technologies, Inc., INCODE Division: P By: �. Signature " Dustin R. Womble Printed Name President - INCODE Division Title 3/7/06 Issue Date ,} 6 works. �e Customer Name: Town of Westlake E. 7 [tet% f Contact: Amanda DeGan Tyler Technologies I INCODE Division Date: March 7, 2006 Salesman: Shane Cleaveland Investment Summary i!cotT et $ercice Equlgtnetit ; ; : '. „ Contract ID #: 2006-0106 Prepared for: Town of Westlake As"1'r'ogress <iec tra %t Is,; r 349CaitFi�n nee',' Contact Person: Amanda DeGan Issue Date: 3/7106 Address: 2650 Ottinger Road Salesman: L. Midkiff/ Westlake, Texas 76262 Phone: 817.490.5715 S. Cleaveland Fax: 817.430.0967 Email: adeganawestlake-tx.org Tax Exempt: Yes/No 77 ". ' ; : '. „ . {?n Signature ' On Delivergr As Verifigti.. "' `';; As"1'r'ogress <iec tra %t Is,; r 349CaitFi�n nee',' Total Hardware & System Software 353.75 1,061.25 1,415.00 283.00 Total Applications Software License Fees 250.00 600.00 150.00 1,000.00 250.00 Total Professional Services Hardware Services 240.00 240.00 On -Site Services 480.00 480.00 i ota;" " 777' 7 b03:75. ,,6612 X50 0 ` �' : AZO 110,35 Qty Please Note: Travel expenses rvill be billed as incurred C tylerworks. Tyler Technologies 1 INCODE Division Customer Name: Contact: Date: Salesman: Town of Westlake Amanda DeGan March 7, 2006 Shane Cieaveland Software Licenses and Professional Services Estimated Estimated Annual Application Software QTY License Fee Conversion Hours Services Total Cost Maintenance Court Case Management Centralized Cash Collections 1 1,000 4 480 1,480 250 MCODE Subtotal 1,000 4 480 1,480 250 INCODE System Software Subtotal Total 1,000 4 480 1,480 250'.. " P ! 3 r 1 �j° h Customer Name: Town of Westlake tRJ (! !C a Contact: Amanda DeGan Tyler Technologies i INCODE Division Date: March 7, 2006 Salesman: Shane Cleaveland Cash Collection Hardware Misc. Hardware and Network Equip. QTY Purchase Price Installation Expenses Annual Maintenance Maintenance Source Cash Collection Epson TM-U950P Receipt Validation Printer (Parallel) (L) 1 1,015 203 INCODE - 12 mos warranty Media Plus Automated Cash Drawer (L) 2 400 80 INCODE - 12 mos warranty Installation and Configuration of System (# of Hours) 2 240 Total 1,415 240 283 Please refer to INCODE's RMA policy for all returns. 111� IF 111 11 - 1,1 111 111 General Payment Terms b) Ownership of the software products, 1. CLIENT will pay to COMPANY an accompanying documentation and initial deposit upon execution of this related materials, and any modifications Agreement that equals 25% of the total and enhancements to such software amount as specified in this Agreement, products and any related interfaces shall not including Annual Software remain with COMPANY. Maintenance, Third Party Software c) The software products are not licensed Maintenance, and/or Hardware to perform functions or processing for Maintenance fees; subdivisions or entities that were not 2. CLIENT will pay a second considered by COMPANY at the time installment to COMPANY upon delivery COMPANY issued this Agreement. of the software products that equals 60% d) The right to transfer this license to a of the Application Software License replacement hardware system is included Fees and 75% of the System Software in this Software License Agreement. The License Fees; Delivery Attestment is cost for new media or any required included as Exhibit 1. technical assistance to accommodate the 3. The remaining 15% balance of the transfer would be billable charges to total amount specified in this Agreement CLIENT. Advance written notice of any for all products and License fees shall be such transfer shall be provided to paid after (a) COMPANY's verification COMPANY. of the software products, (b) CLIENT's e) CLIENT agrees that the software completion of its own validation process, products, any modifications and or (c) CLIENT's live processing. In no enhancements and any related interfaces case, shall this period exceed thirty (30) are proprietary to COMPANY and have days from live processing or one been developed as a trade secret at hundred -eighty (180) days from COMPANY's expense. CLIENT agrees installation of the software. to keep the software products 4. Services shall be billed as delivered confidential and use its best efforts to plus expenses and are due and payable prevent any misuse, unauthorized use or net 30 days. unauthorized disclosures by any party of any or all of the software products or Software License Agreement accompanying documentation. 1) Software Product License. I) If CLIENT has made modifications to a) Upon CLIENT's payment for the the software products, COMPANY will software products listed on the cover of not support or correct errors in the this Agreement, for the license fees set modified software products, unless forth in the Investment Summary, modifications were specifically COMPANY shall grant to CLIENT and authorized in writing by COMPANY. CLIENT shall accept from COMPANY g) CLIENT may make copies of the a non-exclusive, nontransferable, software products for archive purposes nonassignable license to use the software only. CLIENT will repeat any products and accompanying proprietary notice on the copy of the documentation for internal business software products. The documentation purposes of CLIENT, subject to the conditions and limitations in this Software License Agreement. 1 11 �``1,01 Or, r 1% 11, MEs accompanying the software products may not be copied except for internal use. h) The term of the license granted by this Section shall be perpetual. i) COMPANY maintains an escrow agreement with an Escrow Services Company under which COMPANY places the source code of each major release. At CLIENT's request, COMPANY will add CLIENT as a beneficiary on its escrow account. CLIENT will be invoiced the annual beneficiary fee by COMPANY and is solely responsible for maintaining its status as a beneficiary. 2) License Fees. a) CLIENT agrees to pay COMPANY, and COMPANY agrees to accept from CLIENT as payment in frill for the license herein, the total sum of the COMPANY license fees set forth in the Investment Summary. b) The license fees listed in the Investment Summary do not include any tax or other governmental impositions including, without limitation, sales, use or excise tax. All applicable sales tax, use tax or excise tax shall be paid by CLIENT and shall be paid over to the proper authorities by CLIENT or reimbursed by CLIENT to COMPANY on demand in the event that COMPANY is responsible or demand is made on COMPANY for the payment thereof. If tax-exempt, CLIENT must provide COMPANY with CLIENT's tax-exempt number or form. c),In the event of any disputed invoice, CLIENT shall provide written notice of such disputed invoice to Attention: COMPANY Controller at the address listed on the cover of this Agreement. Such written notice shall be provided to COMPANY within fifteen (15) days. An additional fifteen (15) days is allowed for the CLIENT to provide written clarification and details for the disputed invoice. COMPANY shall provide a written response to CLIENT that shall include either a justification of the invoice or an explanation of an adjustment to the invoice and an action plan that will outline the reasonable steps needed to be taken by COMPANY and CLIENT to resolve any issues presented in CLIENT's notification to COMPANY. CLIENT may withhold payment of only the amount actually in dispute until COMPANY provides the required written response, and frill payment shall be remitted to COMPANY upon COMPANY's completion of all material action steps required to remedy the disputed matter. Notwithstanding the foregoing sentence, if COMPANY is unable to complete all material action steps required to remedy the disputed matter because CLIENT has not completed the action steps required of them, CLIENT shall remit full payment of the invoice. d) Any invoice not disputed as described above shall be deemed accepted by the CLIENT. If payment of any invoice that is not disputed as described above is not made within sixty (60) calendar days, COMPANY reserves the right to suspend delivery of all services under the Investment Summary, this Software License Agreement, the Professional Services Agreement, the Maintenance Agreement and, if applicable, the Third Party Product Agreement. 3) Verification of the Software Products. a) At the CLIENT's request, within thirty (30) days after the software products have been installed on CLIENT's system, COMPANY will test the all iiiiii software products in accordance with COMPANY's standard verification test procedure. Demonstration shall constitute CLIENT's verification that the software products substantially comply with COMPANY's documentation for the most current version of the software products and functional descriptions of the software found in COMPANY's written proposal to CLIENT. Upon such verification, CLIENT shall pay the remaining balance in accordance with the payment terms listed in Section General Payment Terms or amended in any attached addendum. b) At its option, CLIENT may perform CLIENT's own defined internal validation process to test the software to substantially comply with COMPANY's documentation for the most current version of the software products and functional descriptions of the software found in COMPANY's written proposal to CLIENT. Such validation test shall constitute CLIENT's verification. Upon such validation, CLIENT shall pay the remaining balance in accordance with the payment terms listed in Section General Payment Terms or amended in any attached addendum. c) Notwithstanding anything contrary herein, CLIENT's use of the software products for its intended purpose, shall constitute CLIENT's verification of the software products, without exception and for all purposes. d) Verification or validation, by CLIENT, that the software products substantially comply with COMPANY's documentation for the most current version of the software products and functional descriptions of the software found in COMPANY's written proposal to CLIENT shall be final and conclusive except for latent defect, fraud, and such J gross mistakes that amount to fraud and the operation of any provision of this Agreement which specifically survives verification. In. the event said verification becomes other than final, or becomes inconclusive, pursuant to this paragraph, CLIENT's sole right and remedy against COMPANY shall be to require COMPANY to correct the cause thereof. e) COMPANY shall correct any functions of the software products which failed the standard verification testing or failed to comply with COMPANY's documentation for the most current version of the software products and functional descriptions of the software found in COMPANY's written proposal to CLIENT. If CLIENT has made modifications to the software programs, COMPANY will not make such corrections, unless such modifications were specifically authorized in writing by COMPANY. 4) Schedule of Verification. COMPANY will install the software products and cause the same to be verified within sixty (60) days after CLIENT makes available to COMPANY the equipment into which the software product is to be loaded. COMPANY shall exercise reasonable efforts to cause the software products to be verified according to the schedule set forth in this paragraph, but COMPANY shall not be liable for failure to meet said schedule if, and to the extent, said failure is due to causes beyond the control and without the fault of COMPANY. 5) Limited Warranty. COMPANY warrants that the then current, unmodified version of the COMPANY Software Products will substantially conform to the then current version of its published Documentation. If the Software Products do not perform as warranted, COMPANY's obligation will be to use reasonable efforts, consistent with industry standards, to cure the defect. Should COMPANY be unable to cure the defect or provide a replacement product, CLIENT shall be entitled to a refund for the license fee paid for application. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED OR VERBAL, STATUTORY OR OTHERWISE, AND WHETHER ARISING UNDER THIS AGREEMENT OR OTHERWISE ARE HEREBY EXCLUDED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 6) Limitation of Liability. (a) In the event that the software products are determined to infringe upon any existing United States patent copyright or trademark rights held by any other person or entity, COMPANY shall defend and hold harmless CLIENT and its officers, agents and employees from any claim or proceedings brought against CLIENT and from any cost damages and expenses finally awarded against CLIENT which arise as a result of any claim that is based on an assertion that CLIENT's use of the software products under this Software License Agreement constitutes an infringement of any United States patent, copyright or trademark provided that CLIENT notifies COMPANY promptly of any such claim or proceeding and gives COMPANY full and complete authority, 4 information and assistance to defend such claim or proceeding and further provided that COMPANY shall have sole control of the defense of any claim or proceeding and all negotiations for its compromise or settlement provided that COMPANY shall consult with CLIENT regarding such defense. In the event that the software products are finally held to be infringing and its use by CLIENT is enjoined, COMPANY shall, at its election; (1) procure for CLIENT the right to continue use of the software products; (2) modify or replace the software products so that it becomes non -infringing; or (3) if procurement of the right to use or modification or replacement can not be completed by COMPANY, terminate the license for the infringing software product, and upon termination, refund the license fees paid for the infringing software product as depreciated on a straight-line basis over a period of seven (7) years with such depreciation to commence on the execution of this Agreement. COMPANY shall have no liability hereunder if CLIENT modified the software products in any manner without the prior written consent of COMPANY and such modification is determined by a court of competent jurisdiction to be a contributing cause of the infringement or if the infringement would have been avoided by CLIENT's use of the most current revision of the software products. The foregoing states COMPANY's entire liability and CLIENT's exclusive remedy with respect to any claims of infringement of any copyright, patent, trademark, or any property interest rights by the software products, any part thereof, or use thereof. b) THE RIGHTS AND REMEDIES SET FORTH IN THIS SOFTWARE LICENSE AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES OR WARRANTIES EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND SYSTEM INTEGRATION. c) In no event shall COMPANY be liable for special, indirect, incidental, consequential or exemplary damages., including without limitation any damages resulting from loss of use, loss of data, interruption of business activities or failure to realize savings arising out of or in connection with the use of the software products. COMPANY's liability for damages arising out of this Software License Agreement, whether based on a theory of contract or tort, including negligence and strict liability shall be limited to the COMPANY license fees identified in the Investment Summary. The license fees set forth in the Investment Summary reflect and are set in reliance upon this allocation of risk and the exclusion of such damages as set forth in this Software License Agreement. 7) Dispute Resolution. In the event of a dispute between the parties under this Software License Agreement pertaining to pecuniary damages or losses, the matter shall be settled by arbitration in accordance with the then prevailing rules of the American Arbitration Association. 8) No Intended Third Party Beneficiaries. This agreement is entered into solely for the benefit of COMPANY and CLIENT. No third party shall be deemed a beneficiary of this agreement, and no third party shall have the right to I make any claim or assert any right under this agreement. 9) Governing Law. This Software License Agreement shall be governed by and construed in accordance with the laws of CLIENT's state of domicile. 10) Entire Agreement. a) This Software License Agreement, including Exhibit I and the functional description of the software products found in COMPANY's written proposal to CLIENT, represents the entire agreement of CLIENT and COMPANY with respect to the software products and supersedes any prior agreements, understandings and representations, whether written, oral, expressed, implied, or statutory. CLIENT hereby acknowledges that in entering into this agreement it did not rely on any representations or warranties other than those explicitly set forth in this Software License Agreement and the functional description of the software products found in COMPANY's written proposal to CLIENT. b) If any term or provision of this Software License Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Software License Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Software License Agreement shall be valid and enforced to the fullest extent permitted by law. c) This Software License Agreement may only be amended, modified or changed by written instrument signed by both parties. d) CLIENT should return an executed copy of this Agreement to COMPANY. If the Agreement is not returned to COMPANY within 90 days from the issue date, then such Agreement is subject to be voided and prices are subject to change. 11) Cancellation or Termination. In the event of cancellation or termination of this Software License Agreement, CLIENT will make payment to COMPANY for all software products, services and expenses delivered or incurred prior to the termination or cancellation of this Software License Agreement. 12) Approval of Governing Body. CLIENT represents and warrants to COMPANY that this Software License Agreement has been approved by its governing body and is a binding obligation upon CLIENT. Professional Services Agreement 1) Services Provided. COMPANY shall provide some or all of the following services to CLIENT: a) Installation as described in the Investment Summary; b) Conversion of CLIENT's existing data as set forth in the Investment Summary. CLIENT is responsible for reading and complying with COMPANY's Conversion Statement. c) Training/Implementation as set forth in the Investment Summary; d) Consulting/Analysis as set forth in the Investment Summary; and e) Verification Testing as described in the Software License Agreement. 2) Professional Services Fees. a) Notwithstanding specific prices to the contrary identified in the Investment Summary, all services will be invoiced in hourly increments as delivered, plus 0 travel and other expenses, plus a 10% processing fee. CLIENT agrees to pay COMPANY for the actual amount of training provided. The quantity in the Investment Summary represents only an estimate of time required to complete all phases of this Agreement. b) Upon the completion of each service day, or group of days, COMPANY will present a Daily Log. CLIENT will sign the report indicating acceptance of the service day and its subsequent billing, or noting reasons for CLIENT's non- acceptance of such. This acceptance is final. c) CLIENT is not charged for travel time to and from the CLIENT's site. Only time spent on-site is billed as training time; excluding those cases in which the CLIENT requires the COMPANY trainer(s) to travel on the weekend, in which case CLIENT will be billed for weekend travel time at a rate of $500 per weekend day. d) If CLIENT travels to COMPANY location for training, then CLIENT agrees to pay all expenses related to transportation of CLIENT's employees. e) All requests for supporting documentation shall be made within thirty (30) calendar days of invoice delivery. Such documentation will consist of quoted internet rates within 7 days from the date the request is received by the COMPANY and not actual receipts. Such quotes will be deemed acceptable documentation if price is within 25% of actual amounts charged to CLIENT, adjusted by unusual or seasonal travel circumstances. f) The rates for Verification Testing shall be the same as the Training/Implementation rates set forth in the Investment Summary. }�t =1111011130 z1. g) The rates listed in the Investment Summary do not include any tax or other governmental impositions including, without limitation, sales, use or excise tax. All applicable sales tax, use tax or excise tax shall be paid by CLIENT and shall be paid over to the proper authorities by CLIENT or reimbursed by CLIENT to COMPANY on demand in the event that COMPANY is responsible or demand is made on COMPANY for the payment thereof. If tax-exempt, CLIENT must provide COMPANY with CLIENT's tax-exempt number or form. h) Payment is due within thirty (30) calendar days of invoice. i) In the event of any disputed invoice, CLIENT shall provide written notice of such disputed invoice to Attention: COMPANY Controller at the address listed on the cover of this Agreement. Such written notice shall be provided to COMPANY within fifteen (15) calendar days of CLIENT's receipt of the invoice. An additional fifteen (15) days is allowed for the CLIENT to provide written clarification and details for the disputed invoice. COMPANY shall provide a written response to CLIENT that shall include either a justification of the invoice or an explanation of an adjustment to the invoice and an action plan that will outline the reasonable steps needed to be taken by COMPANY and CLIENT to resolve any issues presented in CLIENT's notification to COMPANY. CLIENT may withhold payment of only the amount actually in dispute until COMPANY provides the required written response, and full payment shall be remitted to COMPANY upon COMPANY's completion of all material action steps required to remedy the disputed matter. Notwithstanding the foregoing sentence, 0 if COMPANY is unable to complete all material action steps required to remedy the disputed matter because CLIENT has not completed the action steps required of them, CLIENT shall remit full payment of the invoice. j) Any invoice not disputed as described above shall be deemed accepted by the CLIENT. If payment of any invoice that is not disputed as described above is not made within sixty (60) calendar days, COMPANY reserves the right to suspend delivery of all services under the Investment Summary, the Software License Agreement, this Professional Services Agreement, the Maintenance Agreement and, if applicable, the Third Party Product Agreement. 3) 'Training Environment. If training is being conducted at the CLIENT's site, the CLIENT is responsible for providing a productive environment to conduct training. COMPANY is not responsible for its inability to conduct training or for inadequate training arising due to interruptions and/or unavailability of CLIENT persomiel to be trained. Time spent on-site by COMPANY that results in non-productive training time beyond COMPANY's control will be billed as training time. COMPANY will make reasonable efforts to schedule training on dates requested by the CLIENT. Trainers will be on-site approximately noon Monday through noon Friday. This allows appropriate travel time to and from the CLIENT's site. 4) Additional Services. Services utilized in excess of those set forth in the Investment Summary and additional related services not set forth in the Investment Summary will be billed at COMPANY's then current market rate for the service as they are incurred. 5) Limitation of Liability. COMPANY shall not be liable for inaccurate data in COMPANY's application software which is the result of conversion of inaccurate data from the previous system. COMPANY's liability for damages arising out of this Professional Services Agreement, whether based on a theory of contract or tort, including negligence and strict liability, shall be limited to the professional service fees identified in the Investment Summary. The CLIENT shall not in any event be entitled to, and COMPANY shall not be liable for, indirect, special, incidental, consequential or exemplary damages of any nature. The professional service fees set forth in the Investment Summary reflect and are set in reliance upon this allocation of risk and the exclusion of such damages as set forth in this Professional Services Agreement. 6) Dispute Resolution. In the event of a dispute between the parties under this Professional Services Agreement pertaining to pecuniary damages or losses, the matter shall be settled by arbitration in accordance with the then prevailing rules of the American Arbitration Association. 7) No Intended 'Third Party Beneficiaries. This Professional Services Agreement is entered into solely for the benefit of COMPANY and CLIENT. No third party shall be deemed a beneficiary of this Professional Services Agreement, and no third party shall have the right to make any claim or assert any right under this Professional Services Agreement. 8) Governing haw. This Professional Services Agreement shall be governed by and construed in accordance with the laws of CLIENT's state of domicile. E 9) Cancellation or Termination. h1 the event of cancellation or termination of this Professional Services Agreement, CLIENT will make payment to COMPANY for all services and expenses delivered or incurred prior to the termination or cancellation of this Professional Services Agreement. 10) Entire Agreement. a) This Professional Services Agreement represents the entire agreement of CLIENT and COMPANY with respect to the professional services and supersedes any prior agreements, understandings and representations, whether written, oral, expressed, implied, or statutory. CLIENT hereby acknowledges that in entering into this agreement it did not rely on any representations or warranties other than those explicitly set forth in this Professional Services Agreement. b) If any term or provision of this Professional Service Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Professional Services Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Professional Services Agreement shall be valid and enforced to the fullest extent permitted by law. c) This Professional Services Agreement may only be amended, modified or changed by written instrument signed by both parties. d) CLIENT should return an executed copy of this Agreement to COMPANY. If the Agreement is not returned to COMPANY within 90 days from the issue date, then such Agreement is EST 011k 111AIRITUMV 1254 M11 I subject to be voided and prices are subject to change. 11) Approval of Governing Body. CLIENT represents and warrants to COMPANY that this Professional Services Agreement has been approved by its governing body and is a binding obligation upon CLIENT. Annual Software Maintenance Agreement 1) Scope of Agreement. The CLIENT agrees to purchase and COMPANY agrees to provide services for the software products listed on the cover of this Agreement in accordance with the following terms and conditions. Both parties acknowledge that this Annual Software Maintenance Agreement covers both Support for the software products listed on the cover of this Agreement and Licensing of updates of such installed software products. 2) Term of Agreement. This Annual Software Maintenance Agreement is effective on the date executed by an officer of COMPANY and shall have a term beginning upon the first of the month six months after the installation of the COMPANY Software and ending upon the last day of the month one year following that date. a) This Annual Software Maintenance Agreement will automatically renew for subsequent one-year terms unless either party gives the other party at least thirty days prior written notice of its intent not to renew. Fees for subsequent years are subject to change. b) If CLIENT has not elected to participate in the COMPANY Annual Software Maintenance Agreement, or elects not to renew the Agreement, the CLIENT shall acquire Software maintenance in accordance to the Section 9 entitled "Support Terns for CLIENTS Not Participating in the Aminal Software Maintenance Agreement ". 3) Payment. a) CLIENT agrees to pay COMPANY the amount identified in the Investment Summary for licensing and support services, as described below. The licensing fee of the COMPANY Software includes six month's maintenance from the time the Software is installed. The annual amount identified in the Investment Summary will become due the first of the month following six months after the installation of the COMPANY software. This payment is due and payable in accordance with Section General Payment Terms or amended in any attached addendum. b) Additional Charges. Any maintenance performed by COMPANY for the CLIENT, which is not covered by this Annual Software Maintenance Agreement, will be charged at COMPANY's then current market rates. All materials supplied in connection with such non -covered maintenance or support plus expenses will be charged to CLIENT. c) Support and services will be suspended whenever CLIENT's account is thirty (30) calendar days overdue. Support and services will be reinstated when CLIENT's account is made current. 4) Terms and Conditions for Licensing of Updates of the Installed Software Products. a) CLIENT is hereby granted the non- exclusive and nontransferable license and right to use the additional versions of the installed software products listed on the Cover of this Agreement which COMPANY may release during the term of this Annual Software Maintenance Agreement. COMPANY agrees to extend and CLIENT agrees to accept a License subject to the terns and conditions contained herein for the installed software products. b) The installed software products listed are licensed for use only for the benefit of CLIENT listed on the cover of this Agreement. The software products are not licensed to perform functions or processing for subdivisions or entities that were not considered by COMPANY when COMPANY placed CLIENT in the categories listed on the cover of this Agreement. c) As long as a current Annual Software Maintenance Agreement is in place, this License may be transferred to another hardware system used for the benefit of CLIENT. CLIENT agrees to notify COMPANY prior to transferring the licensed products to any other system.. The cost for new media or any required technical assistance to accommodate the transfer would be billable charges to the CLIENT. d) CLIENT agrees that the software products are proprietary to COMPANY and have been developed as a trade secret at COMPANY's expense. CLIENT agrees to keep the software products confidential and use its best efforts to prevent any misuse, unauthorized use or unauthorized disclosures by any party of any or all of the software products or accompanying documentation. e) If CLIENT has made modifications to the software products, COMPANY will not support the modified software products, unless modifications were specifically authorized in writing by COMPANY. 10 f) CLIENT may make copies of the licensed software products for archive purposes only. The CLIENT will repeat any proprietary notice on the copy of the software products. The documentation accompanying the product may not be copied except for internal use. g) For as long as a current Annual Software Maintenance Agreement is in place, COMPANY shall promptly correct any functions of the software products which fail to substantially comply with COMPANY's documentation for the most current version of the software products. If CLIENT has made modifications to the software products, COMPANY will not make such corrections, unless modifications were specifically authorized in writing by COMPANY. 5) Terms and Conditions for Support. a) COMPANY shall provide software related CLIENT support during standard support hours. Currently, regular support hours are from 8:00am to 5:00pm Central Standard Time, Monday thru Friday, excluding holidays. Extended support hours are from 7:00am to 8:00am CST and 5:00pm to 7:00pm CST, Monday thru Friday, excluding holidays. Incidents (problem calls) may be initiated via COMPANY's toll free support line, via e-mail to COMPANY's support group or via COMPANY's support web -site during regular support hours. During extended support hours, incidents must be initiated via e-mail to COMPANY"s support group or via COMPANY's support web -site. COMPANY reserves the right to modify these support hours as COMPANY sees fit in order to better serve its CLIENT. Assistance and support requests which require special assistance from COMPANY's development group will be taken and directed by support personnel. b) COMPANY will maintain staff that is appropriately trained to be familiar with the software products in order to render assistance, should it be required. c) COMPANY will provide CLIENT with all updates that COMPANY may make to the then current version of the installed software products covered in this Agreement. d) CLIENT acknowledges that the updates/enhancements may not be compatible with CLIENT's particular hardware configuration or operating system. CLIENT acknowledges that additional hardware and software may be required at the CLIENT's expense in order to utilize the updates/enhancements. e) COMPANY will make available appropriately trained personnel to provide CLIENT additional training, program changes, analysis, consultation, recovery of data, conversion, non- coverage maintenance service, etc., billable at the current per diem rate plus expenses. COMPANY employs many CPAs but is not a board registered CPA firma f) COMPANY shall provide CLIENT with on-line support through the use of communications modem and software. 6) Support Terms for CLIENTs Not Participating in the Annual Software Maintenance Agreement. The Software License Agreement includes six months free maintenance. If CLIENT elects not to participate in the COMPANY Ani -mal Software Maintenance Agreement, CLIENT shall receive support on a Time and Materials basis following six months after the COMPANY Software is installed in accordance with the following terms: 11 a) CLIENTS not on Software Support Maintenance will receive the lowest priority for Software Support. b) CLIENTs not on Software Support Maintenance will be required to purchase new releases of the Software. New Releases will include fixes, enhancements and updates, such as, Tax Tables, W/2 reporting formats, 1099 changes, etc. c) CLIENTs not on Software Support Maintenance will be charged $175 per hour with a one-hour minimum for all software support calls. d) CLIENTs not on Software Support Maintenance will not be granted access to COMPANY's software support web- site. e) CLIENTs not on Software Support Maintenance are subject to higher rates for training and continuing education performed by COMPANY employees. This is due to the fact that the CLIENT may not be utilizing the most current version of our software. f) COMPANY will not guarantee a program fix to a documented bug for software versions that are not the currently released version. Since every CLIENT is on Software Support Maintenance, often times, bug fixes are rolled into the latest release and then sites are upgraded to the latest release of the software. g) If a CLIENT decides to discontinue Software Support Maintenance and later chooses to reinstate Software Support Maintenance, the CLIENT will be required to pay the portion of annual software support maintenance fees for the Enhancement and Software Updates (27%), dating back to the date when the CLIENT discontinued Software Support Maintenance. Once again, COMPANY feels any CLIENT not on Software IV 0111 M-1 Support Maintenance will not be satisfied with the level of support they will receive, which in turn, makes a dissatisfied CLIENT. COMPANY prides itself on customer satisfaction, which is why we strongly encourage every CLIENT to purchase Software Support Maintenance. 7) Additional Services. The Services listed below are not included in the COMPANY Software Maintenance Agreement. These services shall be provided at COMPANY's discretion and will be billed on a Time and Materials basis at COMPANY's current rates. a) Changes to print programs. b) Software modifications. c) Software Training. d) Responding to problems caused by bad data. e) Responding to problems caused by hardware. f) Responding to problems caused by operator error. g) Responding to problems caused by software that is not COMPANY software. h) Responding to problems resulting from misuse, accidents, CLIENT neglect, fire, or any other cause not within COMPANY's reasonable control. i) Changes made to the COMPANY Software by someone other than COMPANY personnel. j) Any other services performed by COMPANY not otherwise specifically provided for in this Agreement, including but not limited to, bank reconciliation, reconciling out of balance reports, balancing segments of the system, etc. 8) Limitations and Exclusions. The support and services of this Maintenance Agreement do not include the following: a) Support service does not include the installation of the software products, 12 onsite support, application design, and other consulting services, support of an operating system or hardware, or any support requested outside of standard support hours. b) CLIENT shall be responsible for implementing at its expense, all changes to the current version. CLIENT understands that changes furnished by COMPANY for the current version are for implementation in the current installed software products version, as it exists without customization or CLIENT alteration. 9) CLIENT Responsibilities. a) CLIENT shall provide, at no charge to COMPANY, full and free access to the programs covered hereunder: working space; adequate facilities within a reasonable distance from the equipment; and use of machines, attachments, features, or other equipment necessary to provide the specified support and maintenance service. Such environment includes, but is not limited to; use of the appropriate operating system at the version and release levels specified by COMPANY and additionally specifies that the environment for any COMPANY software application requires the CLIENT to have e-mail and Internet access. CLIENT shall provide telephone lines, communications software specified by COMPANY, and all equipment necessary to use COMPANY's on-line support. CLIENT will be responsible for all additional costs incurred to the extent such hardware and software does not conform to COMPANY's specifications. The acquisitions of necessary hardware and software meeting the requirements then in effect shall be sole responsibility of the CLIENT. b) CLIENT shall maintain a dialup, IP or VPN connection through pcAnywhere. Citrix or Microsoft Terminal Services. COMPANY, at its option, shall use the connection to assist with problem diagnosis and resolution. This connection shall be dedicated for the use of COMPANY and shall not be shared with fax or internet connection line. c) CLIENT must maintain an active e- mail address capable of receiving a 5 MB attachment. This e-mail account must be accessible from a PC cormected to the server hosting the COMPANY software applications. d) CLIENT must open firewall ports to enable access to COMPANY's FTP server for program updates via Live Update. 10) Non -Assignability. The CLIENT shall not have the right to assign or transfer its rights hereunder to any party. 11) Force Majeure. COMPANY shall not be responsible for delays in servicing the products covered by this Annual Software Maintenance Agreement caused by strikes, lockouts, riots, epidemic, war, government regulations, fire, power failure, acts of God, or other causes beyond its control. 12) Limitation of Liability. The liability of COMPANY is hereby limited to a claim for a money judgment not exceeding the fees paid by the CLIENT for services under this Annual Software Maintenance Agreement. The CLIENT shall not in any event be entitled to, and COMPANY shall not be liable for, indirect, special, incidental, consequential or exemplary damages of any nature. 13) Governing Law. This Annual Software Maintenance Agreement shall be governed by and construed in 13 accordance with the laws of CLIENT's state of domicile. 14) Entire Agreement. a) This Annual Software Maintenance Agreement represents the entire agreement of CLIENT and COMPANY with respect to the maintenance of the software products and supersedes any prior agreements, understandings and representations, whether written, oral, expressed, implied, or statutory. CLIENT hereby acknowledges that in entering into this agreement it did not rely on any representations or warranties other than those explicitly set forth in this Annual Software Maintenance Agreement. b) If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Annual Software Maintenance Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Annual Software Maintenance Agreement shall be valid and enforced to the fullest extent permitted by law. c) This Annual Software Maintenance Agreement may only be amended, modified or changed by written instrument signed by both parties. d) CLIENT should return an executed copy of this Agreement to COMPANY. If the Agreement is not returned to COMPANY within 90 days from the issue date, then such Agreement is subject to be voided and prices are subject to change. x r:l- ;El 1 2 t Voll, > Hardware and System Software Agreement 1) Agreement to License or Sell Hardware. For the price set forth in the Investment Summary (Hardware & System Software), COMPANY agrees to license or sell and deliver to CLIENT, and CLIENT agrees to accept from COMPANY the hardware and system software products set forth in the Investment Summary. 2) License of Hardware. a) Upon CLIENT's payment for the hardware listed in the hlvestment Summary, for the license fees set forth in the Investment Summary, COMPANY shall grant to CLIENT and CLIENT shall accept from COMPANY a non- exclusive, nontransferable, non - assignable license to the hardware and system software products and accompanying documentation and related materials for internal business purposes of CLIENT, subject to the conditions and limitations in this section. 3) Price. CLIENT agrees to pay COMPANY and COMPANY agrees to accept from CLIENT as payment in full for the hardware and system software products, the price set forth in the Investment Summary at the following mariner: a) Twenty-five percent (25%) of the price of all hardware and system software products listed in the Investment Summary upon execution of this Agreement; and b) The remaining balance of the price of each item delivered to CLIENT upon delivery of each product. c) In the event of any disputed invoice, CLIENT shall provide written notice of such disputed invoice to Attention: COMPANY Controller at the address listed on the cover of this Agreement. 14 Such written notice shall be provided to COMPANY within fifteen (15) calendar days of CLIENT's receipt of the invoice. An additional fifteen (15) days is allowed for the CLIENT to provide written clarification and details for the disputed invoice. COMPANY shall provide a written response to CLIENT that shall include either a justification of the invoice or an explanation of an adjustment to the invoice and an action plan that will outline the reasonable steps needed to be taken by COMPANY and CLIENT to resolve any issues presented in CLIENT's notification to COMPANY. CLIENT may withhold payment of only the amount actually in dispute until COMPANY provides the required written response, and full payment shall be remitted to COMPANY upon COMPANY's completion of all material action steps required to remedy the disputed matter. Notwithstanding the foregoing sentence, if COMPANY is unable to complete all material action steps required to remedy the disputed matter because CLIENT has not completed the action steps required of them. CLIENT shall remit full payment of the invoice. d) Any invoice not disputed as described above shall be deemed accepted by the CLIENT. If payment of any invoice that is not disputed as described above is not made within sixty (60) calendar days, COMPANY reserves the right to suspend delivery of all services under the Investment Summary, the Software License Agreement, the Professional Services Agreement, the Maintenance Agreement and this Hardware and System Software Agreement. 4) Costs and Taxes. a) Unless otherwise indicated in the Investment Summary, the price includes costs for shipment of and insurance while in transit for the hardware and system software products from the supplier's place of manufacture to C.LIENT's site. b) The price listed in the Investment Summary does not include any tax or other governmental impositions including, without limitation, sales, use or excise tax. All applicable sales tax, use tax or excise tax shall be paid by CLIENT and shall be paid over to the proper authorities by CLIENT or reimbursed by CLIENT to COMPANY on demand in the event that COMPANY is responsible or demand is made on COMPANY for the payment thereof. If tax-exempt, CLIENT must provide COMPANY with CLIENT's tax-exempt number or form. 5) F.O.D. Point. Delivery of each hardware and system software product shall be F.O.B. CLIENT's site. 6) Schedule of Delivery. Delivery of each hardware and system software product shall take place according to mutually agreeable schedule, but COMPANY shall not be liable for failure to meet the agreed upon schedule if, and to the extent, said failure is due to causes beyond the control and without the fault of COMPANY. 7) CLIENT Delays. If any act or failure to act by the CLIENT delays COMPANY's performance, COMPANY shall be excused from performance for an amount of time cone-nensurate with the delay caused by CLIENT. CLIENT acknowledges that its delay may excuse COMPANY from performance for an amount of time greater than the delay caused by CLIENT. Such delays by CLIENT that may cause COMPANY to delay performance include, but are not limited to failure to have prepared any 15 data in the form and format requested by COMPANY, on or before the date specified by COMPANY or to have verified such data for accuracy, submission of erroneous data to COMPANY or CLIENT's failure to have completely prepared the Hardware's installation site prior to the Hardware's actual delivery including, but not limited to, failure to have all electrical work and cable installation completed. 8) Installation and. Verification. If itemized in the Investment Summary, the price includes installation of the hardware and system software products. Upon the completion of installation, CLIENT shall obtain from the installer a certification of completion, or similar document, which certification or similar document shall constitute CLIENT's acceptance of the hardware and system software products. Such acceptance shall be final and conclusive except for latent defects, fraud, and such gross mistakes as amount to fraud and rights and remedies available to CLIENT under the paragraph hereof entitled Warranties. 9) Site Requirements. CLIENT shall prepare the installation site prior to the delivery of the hardware and system software. CLIENT is solely responsible for and will furnish all necessary labor and material to install all associated electrical lines, CRT cables, and telephone lines for communication modems. CLIENT is responsible for installing all required cables. 10) Warranties. ALL WARRANTIES RELATING TO THE HARDWARE AND SYSTEM SOFTWARE ARE PROVIDED DIRECTLY FROM THE HARDWARE MANUFACTURERS AND/OR SOFTWARE PUBLISHERS UNDER THE TERMS AND CONDITIONS OF 11-11 z t r € M#IT�" THEIR RESPECTIVE WARRANTIES. THE WARRANTIES SET FORTH IN THIS HARDWARE AND SYSTEM SOFTWARE AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES REPRESENTATIONS OR WARRANTIES EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND SYSTEM INTEGRATION. 11) Maintenance. There is no hardware maintenance provided pursuant to this Agreement. Hardware warranty and/or maintenance are typically provided by the manufacturer or a Third Party. In situations where COMPANY and the CLIENT agree that COMPANY will provide hardware maintenance, such hardware maintenance shall be governed by the terms of COMPANY's Annual Hardware Maintenance agreement. 12) Limitation of Liability. CLIENT expressly assumes sole responsibility for the selection and use of the hardware and system software. In no event shall COMPANY be liable for special, indirect, incidental, consequential or exemplary damages, including without limitation any damages resulting from loss of use, loss of data, interruption of business activities or failure to realize savings arising out of or in connection with the use of the hardware and system software products. COMPANY's liability for damages arising out of this Hardware and System Software Agreement, whether based on a theory of contract or tort, including negligence and strict liability shall be limited to the price of the hardware and system software products set forth in the 16 Investment Summary. The prices set forth in the Investment Summary reflect and are set in reliance upon this allocation of risk and the exclusion of such damages as set forth in this Hardware and System Software Agreement. 13} Dispute Resolution. In the event of a dispute between the parties under this Hardware and System Software Agreement pertaining to pecuniary damages or losses, the matter shall be settled by arbitration in accordance with the then prevailing rules of the American Arbitration Association. 14) Governing Law. This Hardware and System Software Agreement shall be governed by and construed in accordance with the laws of CLIENT's state of domicile. 15) Cancellation or Termination. In the event of cancellation or termination of this Hardware and System Software Agreement, CLIENT will make payment to COMPANY for all products and related services and expenses delivered or incurred prior to the termination or cancellation of this Hardware and System Software Agreement. CLIENT may also be responsible for restocking fees. 16) Entire Agreement. a) This Hardware and System Software Agreement represents the entire agreement of CLIENT and COMPANY with respect to the hardware and system software products and supersedes any prior agreements, understandings and representations, whether written, oral, expressed, implied, or statutory. CLIENT hereby acknowledges that in entering into this agreement it did not rely on any representations or warranties other than those explicitly set forth in this Hardware and System Software Agreement. b) If any tern or provision of this Hardware and System Software Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Hardware and System Software Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Hardware and System Software Agreement shall be valid and enforced to the fullest extent permitted by law. c) This Hardware and System Software Agreement may only be amended, modified or changed by written instrument signed by both parties. d) CLIENT should return an executed copy of this Agreement to COMPANY. If the Agreement is not returned to COMPANY within 90 days from the issue date, then such Agreement is subject to be voided and prices are subject to change. 17) Approval of Governing Body. CLIENT represents and warrants to COMPANY that this Hardware and System Software Agreement has been approved by its governing body and is a binding obligation upon CLIENT. Annual Hardware Maintenance Agreement 1) Scope of Agreement. For the prices set forth in the Investment Summary, CLIENT requests to cover and COMPANY agrees to cover the equipment specified on the cover of this agreement in accordance with the following terms and conditions. COMPANY requires all like -kind 17 hardware to be covered (i.e. ALL cash drawers, ALL receipt printers, etc.). 2) Price. The CLIENT agrees to pay the Azmual Hardware Maintenance fee specified in this Agreement. COMPANY guarantees this fee for the term of the Amnual Hardware Maintenance Agreement. However, fees for subsequent years are subject to change. 3) Payment. CLIENT agrees to pay the Animal Hardware Maintenance Agreement fee in accordance with the following terms: a) The CLIENT will be invoiced 12 months after the initial installation of the hardware. b) In order for equipment to be eligible to be covered under this Annual Hardware Maintenance Agreement, the equipment must be covered beguiling 12 months after the installation date of the equipment and must remain under continuous coverage on the Annual Hardware Maintenance Agreement 4) Equipment Maintenance Program Terms. COMPANY agrees to provide the maintenance on the equipment specified Linder this agreement in accordance to the following terms: a) In the event of equipment failure, COMPANY will repair the defective equipment and provide the CLIENT with "like or near like" equipment while the defective equipment is being repaired. b) CLIENT shall notify COMPANY of equipment failure. Upon notification, COMPANY will ship via over -night service to the CLIENT the appropriate loaner equipment. The CLIENT shall package the defective equipment in its original container and ship the equipment to COMPANY. c) Once the equipment is repaired, it will be shipped to the CLIENT. Upon receipt of the repaired equipment the CLIENT shall ship the loaner equipment back to COMPANY. The loaner equipment should be shipped back to COMPANY within two days of receiving the repaired equipment. The CLIENT agrees to pay daily rental fees to COMPANY if the loaner equipment is not shipped back to COMPANY within the time frame specified. d) The CLIENT is responsible for shipping cost related to shipping equipment to COMPANY. COMPANY is responsible for shipping cost related to shipping equipment to the CLIENT. 5) Definitions. The following definitions apply to the terms of this Annual Hardware Maintenance Agreement: a) Loaner Equipment. Equipment loaned to the CLIENT by COMPANY for use while the CLIENT's equipment is being repaired. b) Like or Near -Like Equipment. Equipment compatible with the CLIENT's computer system and capable of performing the tasks performed by the equipment being repaired. 6) Limitation of Liability. The liability of COMPANY is hereby limited to that claim for the money judgment not exceeding the fees paid by the CLIENT for services under this Annual Hardware Maintenance Agreement. The CLIENT shall not in any event be entitled to, and COMPANY shall not be liable for, indirect, special, incidental, consequential or exemplary damages of any nature. 7) Governing Law. This Annual Hardware Maintenance Agreement shall be governed by and construed in W accordance with the laws of CLIENT's state of domicile. 8) Entire Agreement. a) This Annual Hardware Maintenance Agreement represents the entire agreement of CLIENT and COMPANY with respect to the maintenance of the hardware and system software products and supersedes any prior agreements, understandings and representations, whether written, oral, expressed, implied, or statutory. CLIENT hereby acknowledges that in entering into this agreement it did not rely on any representations or warranties other than those explicitly set forth in this Annual Hardware Maintenance Agreement. b) If any tenn or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Annual Hardware Maintenance Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Annual Hardware Maintenance Agreement shall be valid and enforced to the fullest extent permitted by law. c) This Annual Hardware Maintenance Agreement may only be amended, modified or changed by written instrument signed by both parties. d) CLIENT should return an executed copy of this Agreement to COMPANY. If the Agreement is not returned to COMPANY within 90 days from the issue date, then such Agreement is subject to be voided and prices are subject to change. ..• Third Party Product Agreement 1.) Agreement to License or Sell Third Party Products. For the price set forth in the Investment Summary (Hardware & System Software), COMPANY agrees to license or sell and deliver to CLIENT, and CLIENT agrees to accept from COMPANY the third party products set forth in the Investment Summary. 2) License of Third Party Software Products. a) Upon CLIENT's payment for the third party software products listed in the Investment Summary, for the license fees set forth in the Investment Summary, COMPANY shall grant to CLIENT and CLIENT shall accept from COMPANY a non-exclusive, nontransferable, non -assignable license to use the third party software products and accompanying documentation and related materials for internal business purposes of CLIENT, subject to the conditions and limitations in this section. b) Ownership of the third party software products, accompanying documentation and related materials, shall remain with the third party manufacturer or supplier. c) The right to transfer this license to a replacement hardware system is governed by the Third Party. The cost for new media or any required technical assistance to accommodate the transfer would be billable charges to CLIENT. Advance written notice of any such transfer shall be provided to COMPANY. d) CLIENT agrees that the third party software products are proprietary to the third party manufacturer or supplier and have been developed as a trade secret at the third -party's expense. CLIENT agrees to keep the software products confidential and use its best efforts to prevent any misuse, unauthorized use or 19 unauthorized disclosures by any party of any or all of the third party software products or accompanying documentation. e) CLIENT shall not perform decompilation, disassembly, translation or other reverse engineering on the software products. I) CLIENT may make copies of the software products for archive purposes only. CLIENT will repeat any proprietary notice on the copy of the software products. The documentation accompanying the software products may not be copied except for internal use. 3) Price. CLIENT agrees to pay COMPANY and COMPANY agrees to accept from CLIENT as payment in full for the third party products, the price set forth in the Investment Summary at the following manner: a) Twenty-five percent (25%) of the price of all third party products listed in the Investment Summary upon execution of this Agreement; and b) The remaining balance of the price of each item delivered to CLIENT upon delivery of each product. c) In the event of any disputed invoice, CLIENT shall provide written notice of such disputed invoice to Attention: COMPANY Controller at the address listed on the cover of this Agreement. Such written notice shall be provided to COMPANY within fifteen (15) calendar days of CLIENT's receipt of the invoice. An additional fifteen (15) days is allowed for the CLIENT to provide written clarification and details for the disputed invoice. COMPANY shall provide a written response to CLIENT that shall include either a justification of the invoice or an explanation of an adjustment to the invoice and an action MAL [-�<•. plan that will outline the reasonable steps needed to be taken by COMPANY and CLIENT to resolve any issues presented in CLIENT's notification to COMPANY. CLIENT may withhold payment of only the amount actually in dispute until COMPANY provides the required written response, and full payment shall be remitted to COMPANY upon COMPANY's completion of all material action steps required to remedy the disputed matter. Notwithstanding the foregoing sentence, if COMPANY is unable to complete all material action steps required to remedy the disputed matter because CLIENT has not completed the action steps required of them, CLIENT shall remit full payment of the invoice. d) Any invoice not disputed as described above shall be deemed accepted by the CLIENT. If payment of any invoice that is not disputed as described above is not made within sixty (60) calendar days, COMPANY reserves the right to suspend delivery of all services under the Investment Summary, the Software License Agreement, the Professional Services Agreement, the Maintenance Agreement and this Third Party Product Agreement. 4) Costs and Taxes. a) Unless otherwise indicated in the Investment Summary, the price includes costs for shipment of and insurance while in transit for the third party products from the supplier's place of manufacture to CLIENT's site. b) The price listed in the Investment Summary does not include any tax or other governmental impositions including, without limitation, sales, use or excise tax. All applicable sales tax, use tax or excise tax shall be paid by CLIENT and shall be paid over to the 20 proper authorities by CLIENT or reimbursed by CLIENT to COMPANY on demand in the event that COMPANY is responsible or demand is made on COMPANY for the payment thereof. If tax-exempt, CLIENT must provide COMPANY with CLIENT's tax-exempt number or form. 5) F.O.D. Point. Delivery of each third party product shall be F.O.B. CLIENT's site. 6) Schedule of Delivery. Delivery of each third party product shall take place according to mutually agreeable schedule, but COMPANY shall not be liable for failure to meet the agreed upon schedule if, and to the extent, said failure is due to causes beyond the control and without the fault of COMPANY. 7) Installation. and Verification. a) If itemized in the Investment Summary, the price includes installation of the third party products. Upon the completion of installation, CLIENT shall obtain from the installer a certification of completion, or similar document, which certification or similar document shall constitute CLIENT's acceptance of the third party products. Such acceptance shall be final and conclusive except for latent defects, fraud, and such gross mistakes as amount to fraud and rights and remedies available to CLIENT under the paragraph hereof entitled Warranties. 8) Site Requirements. CLIENT shall provide: a) a suitable environment, location and space for the installation and operation of the third party products; b) sufficient and adequate electrical circuits for the third party products; and c) installation of all required cables. 9) Warranties. a) COMPANY is authorized by the manufacturer or supplier of all third party software products listed in the Investment Summary to grant licenses or sublicenses to such products. b) Unless otherwise noted in any attached addendum, COMPANY warrants that each third party product shall be new and unused, and if CLIENT fully and faithfully performs each and every obligation required of it under the Third Party Product Agreement, CLIENT's title or license to each third party product shall be free and clear of all liens and encumbrances arising through COMPANY. c) The parties understand and agree that COMPANY is not the manufacturer of the third party products. As such, COMPANY does not warrant or guarantee the condition of the third party products or the operation characteristics of the third party products. d) THE WARRANTIES SET FORTH IN THIS THIRD PARTY PRODUCT AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES REPRESENTATIONS OR WARRANTIES EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND SYSTEM INTEGRATION. 10) Maintenance. It shall be the responsibility of CLIENT to repair and maintain the third party products after acceptance. Support for Third Party Application Software is not provided by COMPANY unless otherwise specified in this Agreement. COMPANY's responsibility is limited to delivering the 21 1, �, I., 0,, Third Party Application Software and installing the software if installation services are provided in this Agreement. 11) Limitation of Liability. CLIENT expressly assumes sole responsibility for the selection and use of the Third Party Application Software. In no event shall COMPANY be liable for special, indirect, incidental, consequential or exemplary damages, including without limitation any damages resulting from loss of use, loss of data, interruption of business activities or failure to realize savings arising out of or in connection with the use of the third party products. COMPANY's liability for damages arising out of this Third Party Product Agreement, whether based on a theory of contract or tort, including negligence and strict liability shall be limited to the price of the third party products set forth in the Investment Summary. The prices set forth in the Investment Summary reflect and are set in reliance upon this allocation of risk and the exclusion of such damages as set forth in this Third Party Product Agreement. 12) Dispute Resolution. In the event of a dispute between the parties under this Third Party Product Agreement pertaining to pecuniary damages or losses, the matter shall be settled by arbitration in accordance with the then prevailing rules of the American Arbitration Association. 13) Governing Law. This Third Party Product Agreement shall be governed by and construed in accordance with the laws of CLIENT's state of domicile. 14) Cancellation or Termination. In the event of cancellation or termination of this Third Party Product Agreement, CLIENT will make payment to COMPANY for all products and related services and expenses delivered or i'. incurred prior to the termination or cancellation of this Third Party Product Agreement. 15) Entire Agreement. a) This Third Party Product Agreement represents the entire agreement of CLIENT and COMPANY with respect to the third party products and supersedes any prior agreements, understandings and representations, whether written, oral, expressed, implied, or statutory. CLIENT hereby acknowledges that in entering into this agreement it did not rely on any representations or warranties other than those explicitly set forth in this Third Party Product Agreement. b) If any term or provision of this Third Party Product Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Third Party Product Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Third Party Product Agreement shall be valid and enforced to the fullest extent permitted by law. c) This Third Party Product Agreement may only be amended, modified or changed by written instrument signed by both parties. d) CLIENT should return an executed copy of this Agreement to COMPANY. If the Agreement is not returned to COMPANY within 90 days from the issue date, then such Agreement is subject to be voided and prices are subject to change. 16) Approval of Governing Body. CLIENT represents and warrants to COMPANY that this Third Party 22 Product Agreement has been approved by its governing body and is a binding obligation upon CLIENT. General Return Merchandise Authorization (RMA) Policy. a) In order to return or replace any product ordered from COMPANY, CLIENT will need to request and obtain an RMA number from appropriate COMPANY personnel. RMA numbers will be issued at the discretion of COMPANY and products returned without an RMA number may be refused by COMPANY. COMPANY reserves the right to refuse the return of any product or to refuse the issuance of an RMA number. b) All shipping costs are the responsibility of the CLIENT. COMPANY recommends the use of a traceable and insurable shipping source. COMPANY will not be responsible for lost or damaged products as a result of the shipping process. c) Qualifying products must be returned unopened with original packaging and materials unless otherwise agreed upon by COMPANY. The following situations will result in the refusal of an RMA number and credit will not be issued to client: ® Opened inkjet or laser jet printers • Opened Third Party Software • Damaged products as a result of irregular use of mishandling by customer d) Products may only be returned to COMPANY for account credit after an RMA number has been issued by COMPANY. All returns are subject to a restocking fee of 20% of original purchase price. Failure to comply with this policy will result in a refusal of credit and future product placement. a EXHIBI P `i — DELIVERY ATE T MEN T The Delivery Attestment test detailed Below x,411 be conducted fbllokvNC`i i�E g iug the I«fitivare install and prior to tile.in iplenrer1tation. The test is perforn-jed using the INCODE Simple Database. This database contains general information applicable to all customers. Given this, the tests will 1104Lvalidate, site specific fiinctionally. Rather, the tests will aftin�r That the Lt�COT�E system is installedand performs base line functions. Customer- specific functionality will be reviewed during the inlplenlentationphaw �vhen site-specific data will be built and applied against desired functionality. Each shite has a space where clients will be asked to initial certifying the software has been installed and accepted. If a section sloes not apply to you, then please mark it as N/A. Please fill out the Client and Contact Nan -ie, initial the appropriate space and fax this docurrrent to (806) 797-4849, attn: Implementation. Contact Nam -t. :1 Financial Smite I. View General Ledger Account Manager (Initial) 2. View Budget Maintenance 3. View AP Vendor Manager 4. Find PO's in PO Inquiry 5. View Inventory Item Maintenance 6. View Fixed Assets Maintenance 7. View Deduction codes 8. View Pay Type codes 9. View Employee Manager 10. View HR Manager CIS Suite 1. View Fee Schedule with Rate Tables (Initial) 2. View Account Manager 3. View Contact and Property Consoles 4. View Bill Maintenance 5. View License Manager 6. View AR Customer Manager 7. View Permits Project Manager 1. View Citation Maintenance (Initial) 2. View Fee Maintenance 3. View Offense Code Maintenance Addendum A to Contract ED # 2006-0106 The following are clarifications and/or modifications to the standard Agreement. In the event of a conflict between Addendum A and the Agreement, Addendum A shall prevail. Payment Terms. a. Client will pay to INCODE an initial deposit upon execution of this Agreement that equals: 25% of the Application Software License Fees 25% of the Third Party Hardware and System Software License Fees b. Client will pay a second installment to INCODE upon delivery of the software products (per Exhibit 1 - Delivery Attestment)that equals: 60% of the Application Software License Fees 75% of the Third Party Hardware and System Software License Fees upon installation. c. The remaining 15% balance of the Application Software License Fees shall be paid after (a) INCODE's verification of the software products, (b) Client's completion of its own validation process, or (c) Client's live processing. Unless the software products fail verification, this period shall not exceed thirty (30) days from live processing or one hundred -eighty (180) days from installation of the software. 2. Consulting, Implementation, Conversion, and Installation Services, plus expenses, are billed as provided/incurred and are due and payable thirty (30) days after receipt of invoice. 3. All sections entitled "Dispute Resolution" have been deleted from this Agreement.