HomeMy WebLinkAboutRes 04-60 Authorizing an Agreement with Tyler Technologies Incode DivisionTOWN OF WESTLAKE
RESOLUTION NO. 04-60
A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF
WESTLAKE, TEXAS, AUTHORIZING THE TOWN MANAGER TO ENTER
INTO AN AGREEMENT WITH TYLER TECHNOLOGIES, INC., INCODE
DIVISION, TO PROVIDE A SOFTWARE INTERFACE PROGRAM FOR THE
HANDHELD ELECTRONIC TICKET WRITERS, AUTHORIZING THE TOWN
MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE TOWN
OF WESTLAKE, TEXAS.
WHEREAS, Citations need to be issued within the Town of Westlake to
control the speed of vehicles and ensure safety; and
WHEREAS, Citation information should be transferred to the Court
office in a timely and efficient manner with minimal manual entry; and
WHEREAS, Tyler Technologies, INCODE Division, will provide a
software interface to the current Court software program for the Town of Westlake.
WHEREAS, Attached is an agreement establishing the services provided
with this agreement; and
WHEREAS, the Mayor and Board of Aldermen of the Town of
Westlake, Texas, as well as the Town Staff, have been committed to providing a safe
environment for its residents and visitors and hereby deem it to be of the utmost
importance to the Town of Westlake and Tyler Technologies to actively participate and
heretofore execute said Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN TO
THE TOWN OF WESTLAKE, TEXAS:
SECTION 1: The above findings are hereby found to be true and correct and
are incorporated herein in the entirety.
SECTION 2: The Board of Aldermen of the Town of Westlake, Texas,
hereby approve the Agreement with Tyler Technologies, Inc., INCODE Division, relating
to the software interface for electronic ticket writers, attached hereto as Exhibit "A"; and
further authorizes the Town Manager to execute said agreement on behalf of the Town of
Westlake, Texas.
SECTION 3: The cost as per said agreement, $1,500.00 for the initial
agreement and $375.00 for annual maintenance, has been calculated in the 2004/2005 and
2005/2006 budget.
SECTION 4: The Town of Westlake's annual participation dues shall be
paid from the Municipal Court Technology Fund and included in the FY 2004-2005 and
2005/2006 budget.
PASSED AND APPROVED ON THIS 13th DAY OF DECEMBER 2004.
ATTEST:
Scott Bra ley, Mayor
in r Crosswy, Town ecretary
APPROVED AS TO FORM:
Trent O. Petty, T Manager
System Agreement
Between
Tyler Technologies, Inc.
L Nj C E Division
5808 4th Street
Lubbock, Texas 79416
(800) 646-2633
(806) 797-4849 Fax
AND
Town of Westlake, TX
#3 Village Circle, Ste 109
Westlake, TX 76262
Phone: 817-430-0861
Fax:
tylerworks.
A
AGREEMENT
This agreement is entered into by and between Tyler Technologies, Inc. - INCODE Division (Interactive Computer Designs, Inc.),
hereinafter referred to as INCODE, located at 5808 4th Street, Lubbock, Texas 79416; and; Town of Westlake, TX
hereinafter referred to as Client on, 2004.
INCODE and Client agree as follows:
1. INCODE 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 -D)
Section B INCODE Agreement Terms and Conditions
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: Town of Westlake, TX
9
Signature
Title
f ?//Z
Date
Sales Tax Cerfficatd Number
INCODE:
By:
Signature
Director of Sales and Marketing
Title
9/16/04
Issue Date
Section A - Investment Summary
Prepared for: I Contract ID # : 2004-0375
Town of Westlake, TX ,
Contact Person:
Address:
Amanda Degan
#f3 Village Circle, Ste 109
Westlake, TX 76262
Issue Date: 9/16/04
Salesman: L.Midkiff/
Phone:
817-430-0861
J.Driver/R.Reeves
Fax:
Email:
adegan@westlake-tx.org
Tax Exempt: Yes / No
Total Applications Software
License Fees
C
1,500
375
Software License, Professional Services, and Maintenance Fees
Interface Software
Court Handheld Interface - Cardinal Tracking
Totai
Estimated Estimated
INCODE On -Site On -Site Assistance
M.,anfity Iicense Fee Services Assistance Hours Fees
1,500
1,500
D
N/A N/A
Estimated Travel Annual Maintenance
Expenses Support Fee
375
INCODE AGREEMENT
TERMS AND CONDITIONS
General Payment Terms
1. Client will pay to INCODE an initial deposit upon
execution of this Agreement that equals 25% of the total
amount as specified in this Agreement, not including Annual
Software Maintenance, Third Party Software Maintenance,
and/or Hardware Maintenance fees;
2. Client will pay a second installment to INCODE upon
delivery of the software products that equals 60% of the
Application Software License Fees and 75% of the System
Software License Fees; Delivery Attestment is included as
Exhibit 1.
3. The remaining 15% balance of the total amoumt specified in
this Agreement for all products and 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. In no case, shall this period exceed thirty (30)
days from live processing or one hundred -eighty (180) days
from installation of the software.
4. Services shall be billed as delivered plus expenses and are
due and payable net 30 days.
Software License Agreement
1) Software Product License.
a) Upon Client's p ayment for the software products listed on
the cover of this Agreement, for the license fees set forth in the
Investment Summary, INCODE shall grant to Client and Client
shall accept from INCODE a non-exclusive, nontransferable,
nonassignable license to use the software products and
accompanying docurnentation for internal business purposes of
Client, subject to the conditions and limitations in this Software
License Agreement.
b) Ownership of the software products, accompanying
documentation and related materials, and any modifications
and enhancements to such software products and any related
interfaces shall remain with INCODE.
c) The software products are not licensed to perforin functions
or processing for subdivisions or entities that were not
considered by INCODE at the time INCODE issued this
Agreement.
d) The right to transfer this license to a replacement hardware
system is included in this Software License Agreement. The
cost for new media or any required technical assistance to
accommodate the transfer would be billable charges to Client.
Advance written notice ofanysuch transfer shall be provided
to INCODE.
e) Client agrees that the software products, any modifications
and enhancements and any related interfaces are proprietary to
INCODE and have been developed as a trade secret at
INCODE'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
docurnentation.
I) If C lient h as in ade in odifrcations t o t he s oftware p roducts,
INCODE will not support or correct errors in the modified
software products, unless modifications were specifically
authorized in writing by INCODE.
g) 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.
h) The term of the license granted by this Section shall be
perpetual.
i) INCODE maintains an escrow agreement with an Escrow
Services Company under which INCODE places the source
code of each major release. At Client's request, INCODE will
add Client as a beneficiary on its escrow account. Client will be
invoiced the armual beneficiary fee by INCODE and is solely
responsible for maintaining its status as a beneficiary.
2) License Fees.
a) Client agrees to pay INCODE, and INCODE agrees to
accept from Client as payment in full for the license herein, the
total sum of the INCODE license fees set forth in the
Investment Summary.
b) T he 1 icense fees 1 isted i n t he Investment S ummary d o n of
include a ny t ax o r o ther g overnmental i mpositions i ncluding,
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 INCODE on demand in the event that ENCODE is
responsible or demand is made onINCODE for the payment
thereof. If tax-exempt, Client must provide INCODE 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: INCODE
Controller at the address listed on the cover of this Agreement.
Such written notice shall be provided to INCODE within
fifteen (15) days. An additional fifteen (15) days is allowed for
the Client to provide written clarification and details for the
disputed invoice. INCODE 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
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plan that will outline the reasonable steps needed to be taken
by INCODE and Client to resolve any issues presented in
Client's notification to INCODE. Client may withhold payment
of only the amount actually in dispute until ENCODE provides
the required written response, and full payment shall be
remitted to ENCODE upon INCODE's completion of all
material action steps required to remedy the disputed matter.
Notwithstanding the foregoing sentence, if INCODE 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, INCODE 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,
INCODE will test the software products in accordance with
INCODE's standard verification test procedure.
Demonstration shall constitute Client's verification that the
software products substantially comply with INCODE's
documentation for the most current version of the software
products and functional descriptions of the software found in
INCODE's written proposal to Client. Upon such verification,
Client shall pay the remaining balance in accordance with the
INCODE AGREEMENT
TERMS AND CONDITIONS
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 INCODE's documentation for the most current
version of the software products and functional descriptions of
the software found in INCODE's written proposal to Client.
Such validation test shall constitute Client's verification. Upon
such validation, Client shall pay the remaining balance in
accordance w ith t he p ayment t erms 1 isted i n S ection G eneral
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 that the software products
substantially comply with INCODE's documentation for the
most current version of the software products and factional
descriptions of the software found in INCODE's written
proposal to Client by Client shall be final and conclusive
except for latent defect, fraud, and such 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 INCODE shall be to require INCODE to
correct the cause thereof.
e) INCODE shall correct any functions of the software
products which failed the standard verification testing or failed
to comply with INCODE's documentation for the most current
version of the software products and functional descriptions of
3
the software found in INCODE's written proposal to Client. If
Client has made modifications to the software programs,
INCODE will not make such corrections, unless such
modifications were specifically authorized in writing by
INCODE.
4) Schedule of Verification. INCODE will install the software
products and cause the same to be verified within sixty (60)
days after Client inakes available to INCODE the equipment
into which the software product is to be loaded. INCODE shall
exercise reasonable efforts to cause the software products to be
verified according to the schedule set forth in this paragraph,
but INCODE 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 INCODE.
5) Limited Warranty. INCODE warrants that the then current,
unmodified version of the ENCODE Software Products will
substantially conform to the then current version of its
published Documentation. If the Software Products do not
perform as warranted, INCODE's obligation will be to use
reasonable e fforts, c onsistent w ith i ndustry s tandards, t o c ure
the d efect. S hould INCODE b e u nable t o c ure the d efect o r
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
INCODE AGREEMENT
TERMS AND CONDI'T'IONS
IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
6) Limitation of Liability.
(a) In the event that the software products are detennined to
infringe upon any existing United States patent copyright or
trademark rights held by any other person or entity, INCODE
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 INCODE promptly of
any such claim or proceeding and gives INCODE full and
complete authority, information and assistance to defend such
claim or proceeding and fin ther provided that INCODE shall
have sole control of the defense of any claim or proceeding and
all negotiations for its compromise or settlement provided that
INCODE 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, INCODE 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 INCODE, 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
4
this Agreement. INCODE shall have no liability hereunder if
Client modified the software products in any manner without
the prior written consent of INCODE 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
INCODE's entire liability and Client's exclusive remedy with
respect to any clains of infiingement 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 INCODE 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 confection with the use of the
software products. INCODE's liability for darnages 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 INCODE license fees identified in the
Investment Sunnnaiy. The license fees set forth in the
Investment Summary reflect and are set in reliance upon this
INCODE AGREEMENT
TERMS AND CONDITIONS
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 INCODE and Client. No
third party shall be deemed a beneficiary of this agreement, and
no third party shall have the right to 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
INCODE's written proposal to Client, represents the entire
agreement of Client and INCODE with respect to the software
products and supersedes any prior agreements, understandings
and representations, whether written, oral, expressed, implied,
or statutory. Client hereby aclarowledges 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 INCODE's written proposal to
Client.
b) If any tern 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
5
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
INCODE. If the Agreement is not returned to INCODE 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 INCODE 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 INCODE 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. INCODE shall provide some or all of
the following services to Client:
a) Installation as described in the hivestment Sununaiy;
b) Conversion of Client's existing data as set forth in the
Investment Summary. Client is responsible for reading and
complying with INCODE's Conversion Statement.
INCODE AGREEMENT
TERMS AND CONDITIONS
c) Training/Implementation in the quantity set forth in the
Investment Summary;
d) Consulting/Analysis in the quantity 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 travel and other expenses,
plus a 10% processing fee. Client agrees to pay INCODE for
the actual amount of training provided. The Investment
Summary reflects the estimated cost for the training proposed
to be furnished by INCODE.
b) Upon the completion of each service day, or group of days,
INCODE 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
INCODE 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) 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.
6
I) The rates for Verification Testing shall be the same as the
Train ing/hnplementation rates set forth in the Investrnent
Summary.
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
INCODE on demand in the event that INCODE is responsible
or demand is made on INCODE for the payment thereof. If tax-
exempt, Client must provide INCODE 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: INCODE
Controller at the address listed on the cover of this Agreement.
Such written notice shall be provided to INCODE 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.
INCODE 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 INCODE and Client
to resolve any issues presented in Client's notification to
INCODE. Client may withhold payment of only the amount
actually in dispute until INCODE provides the required written
response, and full payment shall be remitted to INCODE upon
INCODE's completion of all material action steps required to
remedy the disputed matter. Notwithstanding the foregoing
sentence, if INCODE is unable to complete all material action
INCODE AGREEMENT
TERMS AND CONDITIONS
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, INCODE 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. I NCODE is not
responsible for its inability to conduct training or for
inadequate training arising due to interruptions and/or
unavailability of Client personnel to be trained. Time spent on-
site by INCODE that results in non-productive training time
beyond INCODE's control will be billed as training time.
INCODE 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 INCODE's then current market rate for the service as they
are incurred.
5) Limitation of Liability. INCODE shall not be liable for
inaccurate data in INCODE's application software which is the
result of conversion of inaccurate data from the previous
system. INCODE'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 INCODE 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 riles of the
American Arbitration Association.
7) No Intended Third Party Beneficiaries. This Professional
Services Agreement is entered into solely for the benefit of
INCODE 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 Law. This Professional Services Agreement
shall be governed by and construed in accordance with the laws
of Client's state of domicile.
9) Cancellation or Termination. In the event of cancellation
or termination of this Professional Services Agreement, Client
will make payment to INCODE for all services and expenses
delivered or incurred prior to the termination or cancellation of
this Professional Services Agreement.
a
7
INCODE AGREEMENT
TERMS AND CONDITIONS
10) Entire Agreement.
a) This Professional Services Agreement represents the entire
agreement of Client and INCODE 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) I£ 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
INCODE. If the Agreement is not returned to INCODE within
90 days from the issue date, then such Agreement is subject to
be voided and prices are subject to change.
11) Approval of Governing Body. Client represents and
warrants to INCODE that this Professional Services Agreement
has been approved by its governing body and is a binding
obligation upon Client.
8
Annual Software Maintenance Agreement
1) Scope of Agreement. The Client agrees to purchase and
INCODE agrees to provide services for the software products
listed on the cover of this Agreement in accordance with the
following terns 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) T erm o f A greement. T his Amaral Software Maintenance
Agreement i s e ffective on t he d ate e xecuted b y a n o fficer o f
INCODE and shall have a term beginning upon the first of the
month six months after the installation of the INCODE 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- tens unless either
party gives the other party at least tbirty 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 INCODE
Animal Software Maintenance Agreement, or elects not to
renew the Agreement, the Client shall acquire Software
maintenance in accordance to the Section entitled "Support
Terms for Clients Not Participating in the Annual Software
Maintenance Agreement ".
3) Payment.
a) Client agrees to pay INCODE the amount identified in the
Investment Sununary for licensing and support services, as
described below. The licensing fee of the INCODE Software
INCODE AGREEMENT
TERMS AND CONDITIONS
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 INCODE 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
INCODE for the Client, which is not covered by this Annual
Software Maintenance Agreement, will be charged at
INCODE's then current market rates. All materials supplied in
comiection 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 INCODE may release during the term of this
Annual Software Maintenance Agreement. INCODE 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
9
not considered by INCODE when INCODE 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 INCODE prior to transferring the licensed
products to any other system. The cost for new media or any
required technical assistance to accommodate the transfer
world be billable charges to the Client.
d) C lient agrees that the s oftware p roducts are p roprietary t o
INCODE and have been developed as a trade secret at
INCODE'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,
INCODE will not support the modified software products,
unless modifications were specifically authorized in writing by
INCODE.
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, INCODE shall promptly correct any
functions o f the s oftware p roducts which fail t o s ubstantially
comply with INCODE's documentation for the most current
version of the software products. If Client has made
modifications to the software products, INCODE will not make
INCODE AGREEMENT
TERMS AND CONDITIONS
such corrections, unless modifications were specifically
authorized in writing by INCODE.
5) Terms and Conditions for Support.
a) INCODE 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 thin Friday, excluding holidays. Incidents
(problem calls) may be initiated via INCODE's toll free
support line, via e-mail to INCODE's support group or via
INCODE's support web -site during regular support hours.
During extended support hours, incidents must be initiated via
e-mail to INCODE's support group or via INCODE's support
web -site. INCODE reserves the right to modify these support
hours a s INCODE s ees fit i n o rder t o b etter s erve i is C lient.
Assistance and support requests which require special
assistance from INCODE's development group will be taken
and directed by support personnel.
b) INCODE will maintain staff that is appropriately trained to
be familiar with the software products in order to render
assistance, should it be required.
c) INCODE will provide Client with all updates that INCODE
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.
10
e) INCODE 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 crurent
per diem rate plus expenses. INCODE employs many CPAs
but is not a board registered CPA firm.
f) INCODE shall provide Client with on-line support through
the use of conmaunications 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 INCODE Annual Software
Maintenance Agreement, Client shall receive support on a Time
and Materials basis following six months after the INCODE
Software is installed in accordance with the following terms:
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 INCODE's software support web -site.
e) Clients not on Software Support Maintenance are subject to
higher rates for training and continuing education performed by
INCODE employees. This is due to the fact that the Client
may not be utilizing the most current version of our software.
INCODE AGREEMENT
TERMS AND CONDITIONS
f) INCODE 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
armual 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, INCODE feels any Client not on Software Support
Maintenance will not be satisfied with the level of support they
will receive, which in turn, makes a dissatisfied Client.
INCODE 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 INCODE Software Maintenance Agreement.
These services shall be provided at INCODE's discretion and
will be billed on a Time and Materials basis at INCODE'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
INCODE software.
I1
h) Responding to problems resulting from misuse, accidents,
Client neglect; fire, or any other c ause not within INCODE's
reasonable control.
i) Changes made to the INCODE Software by someone other
than INCODE personnel.
j) Any other services performed by INCODE 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, onsite support, application design, and other
consulting services, support of an operating system or
hardware, or any support requested outside of normal business
hours.
b) Client shall be responsible for implementing at its expense,
all changes to the current version. Client understands that
changes furnished by INCODE 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 INCODE, 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 INCODE and
additionally specifies that the environment for any INCODE
INCODE AGREEMENT
TERMS AND CONDITIONS
software application requires the Client to have e-mail and
Internet access. Client shall provide telephone lines,
communications software specified by INCODE, and all
equipment necessary to use INCODE's on-line support. Client
will be responsible for all additional costs incurred to the extent
such hardware and software does not conform to INCODE'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.
INCODE, at its option, shall use the connection to assist with
problem diagnosis and resolution. This comiection shall be
dedicated for the use of INCODE and shall not be shared with
fax or internet correction line.
e) 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 connected to the server hosting the
INCODE software applications.
d) Client must open firewall ports to enable access to
INCODE'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. INCODE shall not be responsible for
delays in servicing the products covered by this Amival
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 INCODE is
hereby limited to a claim for a money judgment not exceeding
the fees paid by the Client for services under this Annual
12
Software Maintenance Agreement. The client shall not in any
event be entitled to, and INCODE 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 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 INCODE 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 Animal
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 Amoral
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
INCODE. If the Agreement is not returned to INCODE within
INCODE AGREEMENT
TERMS AND CONDITIONS
90 days from the issue date, then such Agreement is subject to
be voided and prices are subject to change.
Hardware and System Software Agreement
1) Agreement to License or Sell Hardware. For the price set
forth in the Investment Summary (Hardware & System
Software), INCODE agrees to license or sell and deliver to
Client, and Client agrees to accept from INCODE 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
Investment Summary, for the license fees set forth in the
Investment Summary, INCODE shall grant to Client and Client
shall accept from INCODE 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 INCODE and INCODE 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 manner:
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: INCODE
Controller at the address listed on the cover of this Agreement.
13
Such written notice shall be provided to INCODE 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.
INCODE 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 INCODE and Client
to resolve any issues presented in Client's notification to
INCODE. Client may withhold payment of only the amount
actually in dispute until INCODE provides the required written
response, and full payment shall be remitted to INCODE upon
INCODE's completion of all material action steps required to
remedy the disputed matter. Notwithstanding the foregoing
sentence, if INCODE 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, INCODE 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 Client's site.
INCODE AGREEMENT
TERMS AND CONDITIONS
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
INCODE on demand in the event that INCODE is responsible
or demand is made on INCODE for the payment thereof. If tax-
exempt, Client must provide INCODE with Client's tax-exempt
number or form.
5) F.O.B. 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 INCODE 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 INCODE.
'n Client Delays. I -f any act or failure to act by the Client delays
INCODE's performance, INCODE shall be excused from
performance for an amount of time cornmensurate with the
delay caused by Client. Client acknowledges that its delay may
excuse INCODE fi-om performance for an amount of time
greater than the delay caused by Client. Such delays by Client
that may cause INCODE to delay performance include, but are
not limited to failure to have prepared any data in the form and
format requested by INCODE, on or before the date specified by
INCODE or to have verified such data for accuracy, submission
of erroneous data to INCODE 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.
14
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 i s s olely r esponsible for and w ill furnish all n ecessary
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 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.
INCODE AGREEMENT
TERMS AND CONDITIONS
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 INCODE and the Client agree
that INCODE will provide hardware maintenance, such
hardware maintenance shall be governed by the terms of
INCODE'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 INCODE 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.
INCODE's liability for d amages 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 Investment Summary. The prices set
forth in the Investment Summery 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 Systern Software
Agreement shall be governed by and construed in accordance
with the laws of Client's state of domicile.
15
15) Cancellation or Termination. In the event of cancellation
or termination of this Hardware and System Software
Agreement, Client will make payment to INCODE 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 INCODE 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 ally person or
circumstance shall, to any extent, be invalid or rmenforecable,
the remainder of this Hardware and System Software
Agreement or the application of such tern 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
tern 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.
INCODE AGREEMENT
TERMS AND CONDITIONS
d) Client should return an executed copy of this Agreement to
INCODE. If the Agreement is not returned to INCODE 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 INCODE 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 INCODE
agrees to cover the equipment specified on the cover of this
agreement in accordance with the following terns and
conditions. INCODE requires all like -kind hardware to be
covered (i.e. ALL cash drawers, ALL receipt printers, etc.).
2) Price. The Client agrees to pay the Annual Hardware
Maintenance fee specified in this Agreement. INCODE
guarantees this fee for the term of the Annual Hardware
Maintenance Agreement. However, fees for subsequent years
are subject to change.
3) Payment. Client agrees to pay the Annual 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 Amival Hardware Maintenance Agreement, the equipment
must be covered beginning 12 months after the installation date
of the equipment and must remain under continuous coverage
on the Annual Hardware Maintenance Agreement
16
4) Equipment Maintenance Program Terms. INCODE
agrees to provide the maintenance on the equipment specified
under this agreement in accordance to the following terms:
a) In the event of equipment failure, INCODE 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 INCODE of equipment failure. Upon
notification, INCODE 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 INCODE.
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 INCODE. The loaner
equipment should be shipped back to INCODE within two
days of receiving the repaired equipment. The Client agrees to
pay daily rental fees to INCODE if the loaner equipment is not
shipped back to INCODE within the time frame specified.
d) The Client is responsible for shipping cost related to
shipping equipment to INCODE. INCODE 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
INCODE 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.
INCODE AGREEMENT
TERMS AND CONDITIONS
6) Limitation of Liability. The liability of INCODE 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 INCODE 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 accordance
with the laws of Client's state of domicile.
8) Entire Agreement.
a) T his A mnual H ardware M aintenance A greement r epresents
the entire agreement of Client and INCODE 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 tern 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 M aintenance A greerrent o r the application o f s uch
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 tem and provision of this Annual
Hardware Maintenance Agreement shall be valid and enforced
to the fullest extent permitted by law.
17
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
INCODE. If the Agreement is not returned to INCODE 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), INCODE agrees to license or sell and
deliver to Client, and Client agrees to accept from INCODE the
third party products set forth in the hivestment Surnmary.
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, INCODE shall grant to Client and
Client shall accept from INCODE 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 INCODE.
INCODE AGREEMENT
TERMS AND CONDITIONS
d) Client agrees that the third party software products are
proprietary to the third party manufacturer or supplier and have
been d eveloped as a trade s ecret at t he t hird-party'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 third
party software products or accompanying documentation.
e) Client shall not perform decompilation, disassembly,
translation or other reverse engineering on the software
products.
f) 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 INCODE and ENCODE 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: INCODE
Controller at the address listed on the cover of this Agreement.
Such written notice shall be provided to INCODE 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.
INCODE shall provide a written response to Client that shall
include either ajustification 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 INCODE and Client
to resolve any issues presented in Client's notification to
INCODE. Client may withhold payment of only the amount
actually in dispute until INCODE provides the required written
response, and full payment shall be remitted to INCODE upon
INCODE's completion of all material action steps required to
remedy the disputed matter. Notwithstanding the foregoing
sentence, if INCODE 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, INCODE 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 Sum2mary, 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 govenunental 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
6
1�
INCODE AGREEMENT
TERMS AND CONDITIONS
to the proper authorities by Client or reimbursed by Client to
ENCODE on demand in the event that INCODE is responsible
or demand is made on INCODE for the payment thereof. If tax-
exempt, Client must provide INCODE with Client's tax-exempt
number or form.
5) F.O.B. 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
INCODE 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 INCODE.
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 ft-om 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.
19
a) INCODE 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, INCODE
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 INCODE.
c) The parties understand and agree that INCODE is not the
manufacturer of the third party products. As such, INCODE
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 INCODE unless otherwise specified in this Agreement.
INCODE's responsibility is limited to delivering the 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
INCODE AGREEMENT
TERMS AND CONDITIONS
Application Software. In no event shall INCODE 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. INCODE'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 t ernimation o f t his T hird P arty P roduct A greement, C lient
will make payinent to INCODE for all products and related
services and expenses delivered or 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 INCODE 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 team 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 terns 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 retain an executed copy of this Agreement to
INCODE. If the Agreement is not returned to INCODE 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 INCODE that this Third Party Product Agreement
has been approved by its governing body and is a binding
obligation upon Client.
6
20
INCODE AGREEMENT
TERMS AND CONDITIONS
Addendum A
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.
1. 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 I - 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" shall read as:
"In the event of a dispute between the parties under this Agreement pertaining to pecuniary damages or losses, non-binding
mediation shall be the prerequisite to institution of legal action. If the matter cannot be settled in mediation, the matter shall be
taken to arbitration in accordance with the then prevailing rules of the American Arbitration Association."