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HomeMy WebLinkAboutContract 1740 is • ••::•. tyler • • technologies LICENSE AND SERVICES AGREEMENT This License and Services Agreement is entered into by and between Tyler Technologies, Inc. ("Tyler") and the City of Cathedral City,California ("Client"). In consideration of the foregoing and of the mutual covenants and promises set forth in this Agreement, Tyler and Client agree as follows: SECTION A—DEFINITIONS • "Agreement" means this License and Services Agreement. • "Business Travel Policy" means our business travel policy. A copy of our current Business Travel Policy is attached as Schedule 1 to Exhibit B. • "Client" means City of Cathedral City,California. • "Defect"means a failure of the Tyler Software to substantially conform to the functional descriptions set forth in our written proposal to you,or their functional equivalent. Future functionality may be updated, modified,or otherwise enhanced through our maintenance and support services,and the governing functional descriptions for such future functionality will be set forth in our then-current Documentation. • "Defined Named Users"means the number of named users that are authorized to use "Energov" labeled modules. The Defined Named Users for Energov labeled modules under this Agreement are set forth in the Investment Summary. • "Developer"means a third party who owns the intellectual property rights to Third Party Software. • "Documentation" means any online or written documentation related to the use or functionality of the Tyler Software that we provide or otherwise make available to you, including instructions,user guides, manuals and other training or self-help documentation. • "Effective Date"means the date on which your authorized representative signs the Agreement. • "Force Majeure"means an event beyond the reasonable control of you or us, including,without limitation,governmental action,war, riot or civil commotion,fire, natural disaster,or any other cause that could not with reasonable diligence be foreseen or prevented by you or us. • "Investment Summary"means the agreed upon cost proposal for the software, products,and services attached as Exhibit A. • "Invoicing and Payment Policy" means the invoicing and payment policy. A copy of our current Invoicing and Payment Policy is attached as Exhibit B. • "Maintenance and Support Agreement"means the terms and conditions governing the provision of maintenance and support services to all of our customers. A copy of our current Maintenance and Support Agreement is attached as Exhibit C. • "Support Call Process" means the support call process applicable to all of our customers who have licensed the Tyler Software. A copy of our current Support Call Process is attached as Schedule 1 to Exhibit C. • "Third Party Terms"means, if any,the end user license agreement(s)or similar terms for the ••:;s•. tyler 1 Third Party Software,as applicable and attached as Exhibit D. • `Third Party Hardware" means the third party hardware, if any, identified in the Investment Summary. • `Third Party Products" means the Third Party Software and Third Party Hardware. • "Third Party Software" means the third party software, if any, identified in the Investment Summary. • "Tyler"means Tyler Technologies, Inc.,a Delaware corporation. • `Tyler Software"means our proprietary software,including any integrations,custom modifications,and/or other related interfaces identified in the Investment Summary and licensed by us to you through this Agreement. • "we","us","our"and similar terms mean Tyler. • "you"and similar terms mean Client. •• SECTION B—SOFTWARE LICENSE 1. License Grant and Restrictions. 1.1 We grant to you a license to use the Tyler Software for your internal business purposes only,in the scope of the internal business purposes disclosed to us as of the Effective Date. With respect to the"Energov" labeled modules,such use shall be limited to the number of Defined Named Users,as defined herein. You may make copies of the Tyler Software for backup and testing purposes,so long as such copies are not used in production and the testing is for internal use only. Your rights to use the Tyler Software are perpetual but may be revoked if you do not comply with the terms of this Agreement. To the extent Client purchases MyGovPay/Virtual Pay,additional terms and conditions related to those applications are set forth at Exhibit D, Schedule 2. 1.2 The Documentation is licensed to you and may be used and copied by your employees for internal, non-commercial reference purposes only. 1.3 You may not: (a)transfer or assign the Tyler Software to a third party;(b) reverse engineer, decompile,or disassemble the Tyler Software; (c) rent, lease, lend,or provide commercial hosting services with the Tyler Software;or(d) publish or otherwise disclose the Tyler Software or Documentation to third parties. 1.4 The license terms in this Agreement apply to updates and enhancements we may provide to you or make available to you through your Maintenance and Support Agreement. 1.5 The right to transfer the Tyler Software to a replacement hardware system is included in your license. You will give us advance written notice of any such transfer and will pay us for any required or requested technical assistance from us associated with such transfer. 1.6 We reserve all rights not expressly granted to you in this Agreement. The Tyler Software and Documentation are protected by copyright and other intellectual property laws and treaties. We own the title,copyright,and other intellectual property rights in the Tyler Software and the Documentation. The Tyler Software is licensed,not sold. • • tyler 2 2. License Fees. You agree to pay us the license fees in the amounts set forth in the Investment Summary. Those amounts are payable in accordance with our Invoicing and Payment Policy. 3. Escrow. We maintain an escrow agreement with a third party under which we place the source code for each major release of the Tyler Software. You may be added as a beneficiary to the escrow agreement by completing a standard beneficiary enrollment form and paying the annual beneficiary fee set forth in the Investment Summary. You will be responsible for maintaining your ongoing status as a beneficiary, including payment of the then-current annual beneficiary fees. Release of source code for the Tyler Software is strictly governed by the terms of the escrow agreement. 4. Limited Warranty. We warrant that the Tyler Software will be without Defect(s)as long as you have a Maintenance and Support Agreement in effect. If the Tyler Software does not perform as warranted,we will use all reasonable efforts,consistent with industry standards,to cure the Defect as set forth in the Maintenance and Support Agreement. SECTION C—PROFESSIONAL SERVICES 1. Cancellation.We make all reasonable efforts to schedule our personnel for travel, including arranging travel reservations,at least two(2)weeks in advance of commitments. Therefore, if you cancel services less than two(2)weeks in advance(other than for Force Majeure or breach by us), you will be liable for all(a) non-refundable expenses incurred by us on your behalf,and (b)daily fees associated with cancelled professional services if we are unable to reassign our personnel. We will make all reasonable efforts to reassign personnel in the event you cancel within two(2)weeks of scheduled commitments. 2. Services Warranty. We will perform the services in a professional,workmanlike manner,consistent with industry standards. In the event we provide services that do not conform to this warranty,we will re-perform such services at no additional cost to you. 3. Site Access and Requirements. At no cost to us,you agree to provide us with full and free access to your personnel,facilities,and equipment as may be reasonably necessary for us to provide implementation services,subject to any reasonable security protocols or other written policies provided to us as of the Effective Date, and thereafter as mutually agreed to by you and us. You further agree to provide a reasonably suitable environment, location,and space for the installation of the Tyler Software and any Third Party Products, including,without limitation,sufficient electrical circuits,cables,and other reasonably necessary items required for the installation and operation of the Tyler Software and any Third Party Products. 4. Client Assistance. You acknowledge that the implementation of the Tyler Software is a cooperative process requiring the time and resources of your personnel. You agree to use all reasonable efforts to cooperate with and assist us as may be reasonably required to meet the agreed upon project deadlines and other milestones for implementation. This cooperation includes at least working with us to schedule the implementation-related services outlined in this Agreement. We will not be liable for failure to meet any deadlines and milestones when such failure is due to Force Majeure or to the failure by your personnel to provide such cooperation and assistance(either through action or omission). ••:;:•. tyler 3 4 SECTION D—MAINTENANCE AND SUPPORT This Agreement includes the period of free maintenance and support services identified in the Invoicing and Payment Policy. If you have purchased ongoing maintenance and support services, and continue to make timely payments for them according to our Invoicing and Payment Policy,we will provide you with maintenance and support services for the Tyler Software under the terms of our standard Maintenance and Support Agreement. If you have opted not to purchase ongoing maintenance and support services for the Tyler Software, the Maintenance and Support Agreement does not apply to you. Instead,you will only receive ongoing maintenance and support on the Tyler Software on a time and materials basis. In addition, you will: (i) receive the lowest priority under our Support Call Process; (ii) be required to purchase new releases of the Tyler Software, including fixes, enhancements and patches; (iii) be charged our then-current rates for support services,or such other rates that we may consider necessary to account for your lack of ongoing training on the Tyler Software; (iv) be charged for a minimum of two(2) hours of support services for every support call; and (v) not be granted access to the support website for the Tyler Software or the Tyler Community Forum. SECTION E—THIRD PARTY PRODUCTS To the extent there are any Third Party Products set forth in the Investment Summary,the following terms and conditions will apply: 1. Third Party Hardware. We will sell,deliver,and install onsite the Third Party Hardware, if you have purchased any,for the price set forth in the Investment Summary. Those amounts are payable in accordance with our Invoicing and Payment Policy. 2. Third Party Software. Upon payment in full of the Third Party Software license fees,you will receive a non-transferable license to use the Third Party Software and related documentation for your internal business purposes only. Your license rights to the Third Party Software will be governed by the Third Party Terms. 2.1 We will install onsite the Third Party Software. The installation cost is included in the installation fee in the Investment Summary. 2.2 If the Developer charges a fee for future updates, releases,or other enhancements to the Third Party Software,you will be required to pay such additional future fee. 2.3 The right to transfer the Third Party Software to a replacement hardware system is governed by the Developer. You will give us advance written notice of any such transfer and will pay us for any required or requested technical assistance from us associated with such transfer. ••:;:•. tyler 4 3. Third Party Products Warranties. 3.1 We are authorized by each Developer to grant or transfer the licenses to the Third Party Software. 3.2 The Third Party Hardware will be new and unused,and upon payment in full,you will receive free and clear title to the Third Party Hardware. 3.3 You acknowledge that we are not the manufacturer of the Third Party Products. We do not warrant or guarantee the performance of the Third Party Products. However,we grant and pass through to you any warranty that we may receive from the Developer or supplier of the Third Party Products. 4. Maintenance. If you have a Maintenance and Support Agreement in effect,you may report defects and other issues related to the Third Party Software directly to us,and we will(a)directly address the defect or issue,to the extent it relates to our interface with the Third Party Software;and/or(b) facilitate resolution with the Developer, unless that Developer requires that you have a separate, direct maintenance agreement in effect with that Developer. In all events,if you do not have a Maintenance and Support Agreement in effect with us,you will be responsible for resolving defects and other issues related to the Third Party Software directly with the Developer. SECTION F—INVOICING AND PAYMENT;INVOICE DISPUTES 1. Invoicing and Payment. We will invoice you for all fees set forth in the Investment Summary per our Invoicing and Payment Policy,subject to Section F(2). 2. Invoice Disputes. If you believe any delivered software or service does not conform to the warranties in this Agreement,you will provide us with written notice within thirty(30)days of your receipt of the applicable invoice. The written notice must contain reasonable detail of the issues you contend are in dispute so that we can confirm the issue and respond to your notice with either a justification of the invoice,an adjustment to the invoice,ora proposal addressing the issues presented in your notice. We will work with you as may be necessary to develop an action plan that outlines reasonable steps to be taken by each of us to resolve any issues presented in your notice. You may withhold payment of the amount(s)actually in dispute,and only those amounts, until we complete the action items outlined in the plan. If we are unable to complete the action items outlined in the action plan because of your failure to complete the items agreed to be done by you, then you will remit full payment of the invoice. We reserve the right to suspend delivery of all services,including maintenance and support services,if you fail to pay an invoice not disputed as described above within fifteen(15)days of notice of our intent to do so. SECTION G—TERMINATION 1. For Cause. If you believe we have materially breached this Agreement,you will invoke the Dispute Resolution clause set forth in Section 1(3). You may terminate this Agreement for cause in the event we do not cure,or create a mutually agreeable action plan to address, a material breach of this Agreement within the thirty(30)day window set forth in Section 1(3). In the event of termination for cause,you will pay us for all undisputed fees and expenses related to the software, products, •: • Vier 5 and us. No third party will be deemed a beneficiary of this Agreement,and no third party will have the right to make any claim or assert any right under this Agreement. This provision does not affect the rights of third parties under any Third Party Terms. 8. Client Lists. You agree that we may identify you by name in client lists, marketing presentations,and promotional materials. 9. Business License. In the event a local business license is required for us to perform services hereunder,you will promptly notify us and provide us with the necessary paperwork and/or contact information so that we may timely obtain such license. 10. Multiple Originals and Authorized Signatures. This Agreement may be executed in multiple originals,any of which will be independently treated as an original document. Any electronic,faxed, scanned, photocopied,or similarly reproduced signature on this Agreement or any amendment hereto will be deemed an original signature and will be fully enforceable as if an original signature. Each party represents to the other that the signatory set forth below is duly authorized to bind that party to this Agreement. 11. Cooperative Procurement. To the maximum extent permitted by applicable law,we agree that this Agreement may be used as a cooperative procurement vehicle by eligible jurisdictions. We reserve the right to negotiate and customize the terms and conditions set forth herein, including but not limited to pricing,to the scope and circumstances of that cooperative procurement. 12. Nondiscrimination. We will not discriminate against any person employed or applying for employment concerning the performance of our responsibilities under this Agreement. This discrimination prohibition will apply to all matters of initial employment,tenure, and terms of employment, or otherwise with respect to any matter directly or indirectly relating to employment concerning race,color, religion, national origin,age,sex,sexual orientation,ancestry,disability that is unrelated to the individual's ability to perform the duties of a particular job or position, height, weight, marital status,or political affiliation. We will post,where appropriate, all notices related to nondiscrimination as may be required by applicable law. 13. Binding Effect; No Assignment. This Agreement shall be binding on,and shall be for the benefit of, either your or our successor(s)or permitted assign(s). Neither party may assign this Agreement without the prior written consent of the other party; provided, however,your consent is not required for an assignment by us as a result of a corporate reorganization, merger,acquisition,or purchase of substantially all of our assets. 14. Force Maieure. Except for your payment obligations, neither party will be liable for delays in performing its obligations under this Agreement to the extent that the delay is caused by Force Majeure; provided, however,that within ten (10) business days of the Force Majeure event,the party whose performance is delayed provides the other party with written notice explaining the cause and extent thereof,as well as a request for a reasonable time extension equal to the estimated duration of the Force Majeure event. 15. Entire Agreement;Amendment. This Agreement represents the entire agreement between you and us with respect to the subject matter hereof, and supersedes any prior agreements, understandings, and representations,whether written,oral,expressed, implied,or statutory. Purchase orders ••:;:•. tyler 9