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HomeMy WebLinkAboutTyler software service agreementSOFTWARE AS A SERVICE AGREEMENT This Software as a Service Agreement is made between Tyler and Client . WHEREAS , Client selected Tyler to provide certain products a nd services set forth in the Investment Summary, including providing Client with access to Tyler 's proprietary software products, and Tyler desires to provide such products and services under the terms of this Agreement; NOW THEREFORE , in consideration of the foregoing and of the mutual covenants and promises set forth in this Agreement, Tyler and Cl ient agree as follows : SECTION A-DEFINITIONS 1. Agreement means this Software as a Services Agreement. 2 . Business Travel Policy means our business travel policy. A copy of our current Business Travel Policy is attached as Schedule 1 to Exhibit B. 3 . Client means Kittitas County, WA. 4 . Data means your data necessary to util ize the Tyler Software. 5 . Data Storage Capacity means the contracted amount of storage capacity for your Data identified in the Investment Summary. 6. 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, based on a condition within our reasonable control. 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. 7 . Developer means a third party who owns the intellectual property rights to Third Party Software. 8 . 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. 9 . Effective Date means the last signature date set forth in the signature block. 10. 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. 11. Investment Summary means the agreed upon cost proposal for the products and services attached as Exhibit A. 12 . Invoicing and Payment Policy means the invoicing and payment policy . A copy of our current Invoicing and Payment Policy is attached as Exhibit B. 13. Initial Term and Renewal Term have the meanings set forth in Section F(l) "Term and Termination" herein. Page 1 of 28 ··::I,. tyler 14. Saas Fees means the fees for the Saas Services identified in the Investment Summary. 15. Saas Services means software as a service consisting of system administration, system management, and system monitoring activities that Tyler performs for the Tyler Software, and includes the right to access and use the Tyler Software, receive maintenance and support on the Tyler Software, including Downtime resolution under the terms of the SLA, and Data storage and archiving. Saas Services do not include support of an operating system or hardware, support outside of our normal business hours, or training, consulting or other professional services. 16. SLA means the service level agreement. A copy of our current SLA is attached hereto as Exhibit C. 17. 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 Schedul e 1 to Exhibit C. 18. Third Party Terms means, if any, the end user license agreement(s) or similar terms, as applicable and attached as Ex h ibit D, which exhibit may be amended from time to time in accordance with this Agreement. 19 . Third Party Hardware means the third -party hardware, if any, identified in the Investment Summary. 20. Third Party Products means the Third Party Software and Third Party Hardware. 21. Third Party Software means the third -party software, if any, identified in the Investment Summary and not embedded in the Tyler Software. 22. Tyler means Tyler Technologies, Inc., a Delaware corporation. 23 . 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. The Tyler Software also includes embedded third-party software that we are licensed to embed in our proprietary software and sub-license to you. 24. we, us, our and similar terms mean Tyler. 25. you and similar terms mean Client. SECTION B -SAAS SERVICES 1. Rights Granted. We grant to you the non-exclusive, non-assignable limited right to use the Saas Services solely for your internal business purposes. The Tyler Software will be made available to you according to the terms of the SLA. You acknowledge that we have no delivery obligations and we will not ship copies of the Tyler Software as part of the Saas Services. You may use the Saas Services to access updates and enhancements to the Tyler Software, as further described in Section C(8) "Maintenance and Support". 2. Saas Fees. You agree to pay us the Saas Fees. Those amounts are payable in accordance with our Invoicing and Payment Policy. You may add additional concurrent users on the terms set forth in Section H(l) "Additional Products and Services". 3. Ownership. 3 .1 We retain all ownership and intellectual property rights to the Saas Services, the Tyler Software, and anything developed by us under this Agreement. We reserve all rights not expressly Page 2 of 28 · ·:. tyler • granted to you in this Agreement. Without limiting the generality of the preceding, we retain all right, title, and interest in and to the Tyler Software, including without limitation, all software used to provide the Tyler Software and all Tyler logos and trademarks reproduced through the Tyler Software, as well as any copyright or other intellectual property rights in and to the Tyler Software. 3.2 You do not acquire under this Agreement any rights to use the Tyler Software in excess of the scope and/or duration of the Saas Services . 3.3 The Documentation is licensed to you and may be used and copied by your employees for internal, non-commercial reference purposes only. 3.4 You retain all ownership and intellectual property rights to the Data . 4. Restrictions. You may not: (a) make the Tyler Software or Documentation resulting from the Saas Services available in any manner to any third party for use in the third party's business operations; (b) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Saas Services; (c) access or use the Saas Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to us; or (d) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Saas Services, Tyler Software, or Documentation available to any third party other than as expressly permitted by this Agreement. 5. Software Warranty. We warrant that the Tyler Software will perform without Defects during the term of this Agreement. If the Tyler Software does not perform as warranted, we will use all reasonable efforts, consistent with industry standards, to cure the Defect in accordance with the maintenance and support process set forth in Section C(8) "Maintenance and Support11 , below, the SLA and our then current Support Call Process or to provide you with a functional equivalent. For the avoidance of doubt, to the extent any third-party software is embedded in the Tyler Software, your limited warranty rights are limited to our Defect resolution obligations set forth above; you do not have separate rights against the developer of the embedded third-party software. 6. Saas Services. 6.1 To the extent applicable, Tyler will make available to Client, upon Client's written request, the service level terms of any third party cloud services provider that hosts the Tyler Software 6.2 In the event we declare a disaster, our Recovery Time Objective ("RTO 11 ) is twenty-four (24) hours. For purposes of this subsection, RTO represents the amount of time, after we declare a disaster, within which your access to the Tyler Software must be restored. 6.3 We test our disaster recovery plan on an annual basis. Our standard test is not client-specific . Should you request a client-specific disaster recovery test, we will work with you to schedule and execute such a test on a mutually agreeable schedule. 6.4 We will be responsible for importing back-up and verifying that you can log-in. You will be responsible for running reports and testing critical processes to verify the returned data. At Page 3 ot28 ·-: .·, tyler .. your written request, we will provide test results to you within a commercially reasonable timeframe after receipt of the request. 6.5 We provide secure data transmission paths from each of your workstations to our servers. 6.6 For at least the past ten (10) years, all of our employees have undergone criminal background checks prior to h i re . All employees sign our confidentiality agreement and security policies. Our data centers are accessible only by authorized personnel with a unique key entry. All other visitors must be signed in and accompanied by authorized personnel. Entry attempts to the data center are regularly audited by internal staff and external auditors to ensure no unauthorized access. SECTION C -OTHER PRO FESSIONAL SERVICES 1. Other Professional Services . We will provide you the various implementation-related services itemized in the Investment Summary. We will finalize that documentation with you upon execution of this Agreement . 2. Professional Services Fees . You agree to pay us the professional services fees in the amounts set forth in the Investment Summary. Those amounts are payable in accordance with our Invoicing and Payment Policy. We will bill you the actual fees incurred based on the in-scope services provided to you. Any discrepancies in the total values set forth in the Investment Summary will be resolved by multiplying the applicable hourly rate by the quoted hours. 3. Additional Services. The Investment Summary contains the scope of services and related costs (including programming and/or interface estimates) required for the project based on the documented scope of the project as of the Effective Date . If additional work is required, or if you use or request additional services, we will provide you with an addendum or change order, as applicable, outlining the costs for the additional work. The price quotes in the addendum or change order will be valid for thirty (30) days from the date of the quote. 4. Cancellation . If travel is required, we will make all reasonable efforts to schedule travel for our personnel, including arranging travel reservations, at least two (2) weeks in advance of commitments. Therefore, if you repeatedly 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. 5. 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. 6. 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 serv ices, 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 Page 4 of 28 · .•• : .. tyler . agree that it is your responsibility to ensure that you satisfy the then-current system requirements, if any, minimally required to run the Tyler Software. 7. Client Assistance. You acknowledge that the implementation of the Tyler Software, and the ability to meet project deadlines and other milestones, is a cooperative effort requiring the time and resources of your personnel, as well as ours. 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. 8. Maintenance and Support. 8.1 For so long as you timely pay your Saas Fees according to the Invoicing and Payment Policy, then in addition to the terms set forth in the SLA and the Support Call Process, we will: 8.1.1 perform our maintenance and support obligations in a professional, good, and workmanlike manner, consistent with industry standards, to resolve Defects in the Tyler Software (limited to the then-current version and the immediately prior version); 8.1.2 provide telephone support during our established support hours; 8.1.3 maintain personnel that are sufficiently trained to be familiar with the Tyler Software and Third Party Software, if any, in order to provide maintenance and support services; 8.1.4 make available to you all major and minor releases to the Tyler Software (including updates and enhancements) that we make generally available without additional charge to customers who have a maintenance and support agreement in effect 8.2 For the avoidance of doubt, Saas Fees do not include the following services: (a) onsite support; (b) application design; (c) other consulting services; or (d) support outside our normal business hours as listed in our then-current Support Call Process. Requested services such as those outlined in this section will be billed to you on a time and materials basis at our then current rates. You must request those services with at least one (1) weeks' advance notice. SECTION D -THIRD PARTY PRODUCTS To the extent there are any Third Party Products identified in the Investment Summary, the Third Party Terms will apply. You acknowledge that we may have embedded third-party functionality in the Tyler Software that is not separately identified in the Investment Summary. If that third-party functionality is not separately identified in the Investment Summary, the limited warranty applicable to the Tyler Software applies, and we further warrant that the appropriate Developer has granted us the necessary license to (i) embed tre unidentified third-party functionality in the Tyler Software; and (ii) sub-license it to you through our license grant to the Tyler Software. You may receive maintenance and support on such embedded third-party software under the Maintenance and Support Agreement. Page Sof28 ······· tyler • SECTION E -INVOICING AND PAYMEN T; INVO ICE DISPUTES 1. Invoicing and Payment. We will invoice you the Saas Fees and fees for other professional services in the Investment Summary per our Invoicing and Payment Policy, subject to Section E(2) "Invoice Disputes". 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, or a 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, and you do not rectify that failure within a commercially reasonable timeframe after we have notified you of it, then we may demand immediate full payment of the invoice . We reserve the right to suspend delivery of all Saas 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 F -TERM A ND TERMINATION 1 . Term . The initial term of this Agreement is five (5) years from the first day of the first month following the Effective Date (the "Initial Term "), unless earlier terminated as set forth below. Upon expiration of the Initial Term, this Agreement will renew automatically for additional one (1) year renewal terms (each a "Renewal Term") at our then -current Saas Fees unless terminated in writing by either party at least sixty (60) days prior to the end of the then-current renewal term. Your right to access or use the Tyler Software and the Saas Services will terminate upon the termination or expiration of this Agreement. 2 . Termination . This Agreement may be terminated as set forth below. In the event of termination, you will pay us for all undisputed fees and expenses related to the software, products, and/or services you have received, or we have incurred or delivered, prior to the effective date of termination . Disputed fees and expenses in all terminations other than your termination for cause must have been submitted as invoice disputes in accordance with Section E(2) "Invoice Disputes". 2.1 Failure to Pay Saas Fees. You acknowledge that continued access to the Saas Services is contingent upon your timely payment of Saas Fees. If you fail to timely pay the Saas Fees, we may discontinue the Saas Services and deny your access to the Tyler Software. We may also terminate this Agreement if you don't cure such failure to pay within forty-five (45) days of receiving written notice of our intent to terminate . 2 .2 For Cause. If you believe we have materially breached this Agreement, you will invoke the Dispute Resolution clause set forth in Section H(3) "Dispute Resolution". You may terminate this Agreement for cause in the event we do not cure, or create a mutually agreeable action plan to Page 6 of 28 address, a material breach of this Agreement within the forty-five (45) day window set forth in Section H(3) "Dispute Resolution". 2.3 Force Majeure. Either party has the right to terminate this Agreement if a Force Majeure event suspends performance of the Saas Services for a period of forty-five (45) days or more. 2.4 Lack of Appropriations. If you should not appropriate or otherwise make available funds sufficient to utilize the Saas Services, you may unilaterally terminate this Agreement upon thirty (30) days written notice to us. You will not be entitled to a refund or offset of previously paid , but unused Saas Fees . You agree not to use termination for lack of appropriations as a substitute for termination for convenience . 2.5 Fees for Termination without Cause during Initial Term. If you terminate this Agreement during the Initial Term for any reason other than cause, Force Majeure, or lack of appropriations, or if we terminate this Agreement during the Initial Term for your failure to pay Saas Fees, you shall pay us the following early termination fees : a, if you terminate during the first year of the Initial Term , 100% of the Saas Fees through the date of termination plus 25 % of the Saas Fees then due for the remainder of the Initial Term; b. if you terminate during the second year of the Initial Term, 100% of the Saas Fees through the date of termination plus 15% of the Saas Fees then due for the remainder of the Initial Term; and c . if you terminate after the second year of the Initial Term, 100% of the Saas Fees through the date of termination plus 10% of the Saas Fees then due for the remainder of the Initial Term. SECTION G -INDEMNIFI CAT ION , LIMITATIO N OF LIABILITY AND INSURANCE 1. Intellectual Property Infringement Indemnification. 1.1 We will defend and indemnify you and your agents, officials, and employees from and against any third -party claim(s) that the Tyler Software or Documentation infringes that third party's patent, copyright, or trademark, or misappropriates its trade secrets, and will pay the amount of any resulting adverse final judgment (or settlement to which we consent). You must notify us promptly in writing of the claim and give us control over its defense or settlement. You agree to provide us with r easonable assistance , cooperation, and information in defending the claim at our expense . 1.2 Our obligations under this Section G(l) will not apply to the extent the claim or adverse final judgment is based on your use of the Tyler Software in contradiction of this Agreement, including with non-licensed third parties, or your willful infringement . 1.3 If we receive information concerning an infringement or misappropriation claim related to the Tyler Software, we may, at our expense and without obligation to do so, either: (a) procure for you the right to continue its use ; (b) modify it to make it non-infringing; or (c) replace it with a Page 7 of 28 ·-.: .. tyler functional equivalent, in which case you will stop running the allegedly infringing Tyler Software immediately. Alternatively, we may decide to litigate the claim to judgment, in which case you may continue to use the Tyler Software consistent with the terms of this Agreement. 1.4 If an infringement or misappropriation claim is fully litigated and your use of the Tyler Software is enjoined by a court of competent jurisdiction, in addition to paying any adverse final judgment (or settlement to which we consent), we will, at our option, either : (a) procure the right to continue its use; (b) modify it to make it non-infringing; (c) replace it with a functional equivalent; or (d) terminate this Agreement and refund you the prepaid but unused Saas Fees for the year in which the Agreement terminates. We will pursue those options in the order listed herein. This section provides your exclusive remedy for third party copyright, patent, or trademark infringement and trade secret misappropriation claims. 2. General Indemnification. 2.1 We will defend and indemnify you and your agents, officials, and employees from and against any and all third-party claims, losses, liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for (a) personal injury or property damage to the extent caused by our negligence or willful misconduct; or (b) our violation of a law applicable to our performance under this Agreement. You must notify us promptly in writing of the claim and give us sole control over its defense or settlement. You agree to provide us with reasonable assistance, cooperation, and information in defending the claim at our expense. 2.2 To the extent permitted by applicable law, you will indemnify and hold harmless us and our agents, officials, and employees from and against any and all third-party claims, losses, liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for personal injury or property damage to the extent caused by your negligence or willful misconduct; or (b) your violation of a law applicable to your performance under this Agreement. We will notify you promptly in writing of the claim and will give you sole control over its defense or settlement. We agree to provide you with reasonable assistance, cooperation, and information in defending the claim at your expense. 3. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 4. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, OUR LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON A THEORY OF CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, SHALL BE LIMITED TO YOUR ACTUAL DIRECT DAMAGES, NOTTO EXCEED (A) DURING THE INITIAL TERM, AS SET FORTH IN SECTION F(l) "TERM", TOTAL FEES PAID AS OF THE TIME OF THE CLAIM; OR (B) DURING ANY RENEWAL TERM, THE THEN-CURRENT ANNUAL SAAS FEES PAYABLE IN THAT RENEWAL TERM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PRICES SET FORTH IN THIS AGREEMENT ARE SET IN RELIANCE UPON THIS LIMITATION OF LIABILITY AND TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, THIS SECTION G(4) "LIMITATION OF LIABILITY" AND SECTION G(S) "EXCLUSION OF CERTAIN DAMAGES" SHALL APPLY REGARDLESS OF THE FAILURE OF AN ESSENTIAL PURPOSE OR REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS THAT ARE Page 8 of 28 SUBJECT TO SECTIONS G(l) "INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION" AND G(2) "GENERAL INDEMNIFICATION". 5. EXCLUSION OF CERTAIN DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER , EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 6. Insurance. During the course of performing services under this Agreement, we agree to maintain the following levels of insurance : (a) Commercial General Liability of at least $1,000,000; (b) Automobile Liability of at least $1,000,000; (c) Professional Liability of at least $1,000,000; (d) Workers Compensation complying with applicable statutory requirements; and (e) Excess/Umbrella Liability of at least $5,000,000. Upon your written request, within a commercially reasonable timeframe after the Effective Date, we will provide you with a certificate of insurance identifying you as a certificate holder. You may also request to be added as an additional insured to our Commercial General Liability and Automobile Liability policies, which will automatically add you as an additional insured to our Excess/Umbrella Liability policy as well. That additional insured status will be reflected on the certificate of insurance we provide you at your request after the Effective Date. We agree that our insurance will be primary on claims for which we are responsible. Copies of our insurance policies are only available in the event of a disputed or litigated claim . SECT ION H -GENERAL TERM S ANO CO NDITIO NS 1. Additional Tyler Software, Products, and Services. You may purchase additional Tyler Software, products and services at the rates set forth in the Investment Summary for twelve (12) months from the Effective Date by executing a mutually agreed addendum or Tyler purchase order. If no rate is provided in the Investment Summary, or those twelve (12) months have expired, you may purchase additional Tyler products and services at our then-current list price, also by executing a mutually agreed addendum or Tyler purchase order. The terms of this Agreement will control any such additional purchase(s), unless otherwise specifically provided in the addendum or Tyler purchase order. 2. Optional Items. Pricing for any listed optional products and services in the Investment Summary will be valid for twelve (12) months from the Effective Date. 3. Dispute Resolution. You agree to provide us with written notice within forty-five (45) days of becoming aware of a dispute. You agree to cooperate with us in trying to reasonably resolve all disputes, including, if requested by either party, appointing a senior representative to meet and engage in good faith negotiations with our appointed senior representative . Senior representatives will convene within forty-five (45) days of the written dispute notice, unless otherwise agreed. All meetings and discussions between senior representatives will be deemed confidential settlement discussions not subject to disclosure under Federal Rule of Evidence 408 or any similar applicable state rule. If we fail to resolve the dispute, we will proceed to non-binding mediation before a single mediator jointly selected by us . Nothing in this section shall prevent you or us from seeking necessary injunctive relief from a federal or state court of competent jurisdiction in your domicile during the dispute resolution procedures. 4. Taxes. The fees in the Investment Summary do not include any taxes, including, without limitation, sales, use, or excise tax. If you are a tax-exempt entity, you agree to provide us with a tax-exempt Page 9 of28 certificate. Otherwise, we will pay all applicable taxes to the proper authorities and you will reimburse us for such taxes. If you have a valid direct-pay permit, you agree to provide us with a copy. For clarity, we are responsible for paying our income taxes, both feder·al and state, as applicable, arising from our performance of this Agreement. 5. Nondiscrimination. We will not discriminate against any person employed or applying for employment concerning the performance of our responsibilities tmde r 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 particul,H 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. 6. E-Verify. We have complied, and will comply, with the E-Verify procedures administered by the U.S. Citizenship and Immigration Services Verification Division for all of our employees assigned to your project. 7. Subcontractors. We will not subcontrnct any services under this Agreement without your prior written consent, not to be unreasonably withheld. 8 . Bind Ing Effect; No Assignment. This Ag r eement shall be binding on, and shall be for the benefit of, either your or our successor(s) 01 permitted assign(s). Neither party rnay 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. 9. Force Majeure. 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 caLJsed 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. 10. No Intended Third_-Party Beneficiaries. This Agreement is entered into solely for the benefit of you and us. No third party will be deemed a beneficiary of this Agreement, and no third party will have the right to make any clairn or assert any right under this Agreement. This provision does not affect the rights of third parties under any Third Party Terms 11. 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 submitted by you, if any, are for your internal administrative purposes only, and the terms a11d conditions contained in those purchase orders will have no force or effect (HI the terms of this Agreement and the terms and conditions of this Agreement shall control over any terms and conditions contained in a purchase order or similar document submitted by you. This Agreement may only be modified by a written amendment signed by an authorized representative of each party. Page 10 of 28 ··.; tyler .. . 12. Severability. If any provision of this Agreement (or any portion thereof) or the application of any such provision (or any portion thereof) to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other persons or circumstances. Additionally, any provision of this Agreement is found by a proper authority to be unenforceable, illegal, or invalid, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. 13. No Waiver. In the event that the terms and conditions of this Agreement are not strictly enforced by either party, such non-enforcement will not act as or be deemed to act as a waiver or modification of this Agreement, nor will such non-enforcement prevent such party from enforcing each and every term of this Agreement thereafter. 14. Independent Contractor. We are an independent contractor for all purposes under this Agreement. 15. Notices. All notices or communications required or permitted as a part of this Agreement, such as notice of an alleged material breach for a termination for cause or a dispute that must be submitted to dispute resolution, must be in writing and will be deemed delivered upon the earlier of the following: (a) actual receipt by the receiving party; (b) upon receipt by sender of a certified mail, return receipt signed by an employee or agent of the receiving party; (c) upon receipt by sender of proof of email delivery; or (d) if not actually received, five (5) days after deposit with the United States Postal Service authorized mail center with proper postage (certified mail, return receipt requested) affixed and addressed to the other party at the address set forth on the signature page hereto or such other address as the party may have designated by proper notice. The consequences for the failure to receive a notice due to improper notification by the intended receiving party of a change in address will be borne by the intended receiving party. 16. Client Lists. You agree that we may identify you by name in client lists, marketing presentations, and promotional materials. 17. Confidentiality. Both parties recognize that their respective employees and agents, in the course of performance of this Agreement, may be exposed to confidential information and that disclosure of such information could violate rights to private individuals and entities, including the parties. Confidential information is nonpublic information that a reasonable person would believe to be confidential and includes, without limitation, personal identifying information (e.g., social security numbers) and trade secrets, each as defined by applicable state law. Each party agrees that it will not disclose any confidential information of the other party and further agrees to take all reasonable and appropriate action to prevent such disclosure by its employees or agents. The confidentiality covenants contained herein will survive the termination or cancellation of this Agreement. This obligation of confidentiality will not apply to information that: (a) is in the public domain, either at the time of disclosure or afterwards, except by breach of this Agreement by a party or its employees or agents; (b) a party can establish by reasonable proof was in that party's possession at the time of initial disclosure; or (c) a party receives from a third party who has a right to disclose it to the receiving party. (d) is the subject of a legitimate disclosure request under the open records laws or similar applicable public disclosure laws governing this Agreement, or a subpoena; provided, Page 11 of 28 however, that in the event you receive an open records or other similar applicable request, you will give us prompt notice and otherwise perform the functions required by applicable law. 18. 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. 19. Governing Law; Jurisdiction. This Agreement shall be governed by and construed under the laws of the state of domicile of the Client including applicable U.S. federal laws, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. Without limiting the terms of the Dispute Resolution Provision set forth in Section H (3) "Dispute Resolution", we agree that the state and federal courts in or serving your location shall have jurisdiction, as appropriate, over a dispute under this Agreement. 20. 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. 21. 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. 22. Contract Documents. This Agreement includes the following exhibits : Exhibit A Exhibit B Exhibit C Exhibit D Investment Summary Invoicing and Payment Policy Schedule 1: Business Travel Policy Service Level Agreement Schedule 1: Support Call Process Third Party Terms [Remainder of page is intentionally left blank; signature page to follow] Page 12 of 28 ··:· ·, tyler •• 11,1 w1rN1:<,~ \1'1H1 ru:or:, ,, d,iiy ,111t.lio:-iw.:J 11:pr·:e',.!nlati·,1t· rif ,~;irh /J,)t!\· h:,:, 'LHH'uL<-!d ,111d deiivr!rri~J thk 1\1;1!.!•~mcnl ii~ of the d;1W(:;j : ... ,1· fn1 lit lwlnv., ,;,;io;dw•• i!f1tt Ir: }ti(l\'/(Ht.J ,l~ ;, ~r,'/~lf !..' /q(!.·"!-•t1l,'.'ll /-1..dd I e·s>'.., for· l'Joli((J I:~ n11th, ,. .. 1,,, fl li l ll,,, fyk·, ruchnoll1J;i,:-,;s, Inf., 01ll! '!·f'i~i 1),ivr• Y:ir1111111th, Ml' ()'1096 /<1tv11\iuw U"':r U,(;<1; O[fiuc, w;rhcn;,yln: lylr~r lr!cl·1nl)ln;j1e~, l1H.:. ~,J,r.]J l(~fllly:·.on P,,)rk\vr))J Pl;.n1), TX 0/~~021J /I.I l1-•,1tion; Lr:ci.11 Cle))<lf l:n•:?-nl IN WITNESS WHEHEOF, a duly authorized representative of each party has executed and delivered this 1\greement as of the date(s) set forth below, 5/gnahu l~ f'ago lo SofLw;11(~ as~ $r.nvict~ l"6tet.mwnt TYLER TECHNOLOGIES, INC.: By: Title: Date: Address for Notices: Tyler Technologies, Inc, By : One Tyler Drive Yarmouth, ME 04096 AtU!ntion: Chief Legal Officer Wirh copy to: lyler 'lechnologies, Inc. 5101 len11yson Parkway Pl;ino, TX 75024 Attention: Leg\'11 Department Name: ~ C...O \:\ \(. <;; Title: \¾ .. ~ -·Yl-:)_j_ Date: ')'.,, f -( '5 Address for tj_otir~: Kittitas Couritv. J~vuu1..r _J.Js ~:: __ S.~. /}IQ=~· .... '---1,."""" Ellensburg, WA 98926 Att?.ntion: !N WITNESS WHEREOF, the parties have executed this Agreement this 11 -I da y of ;ept ; 2019. \,11111 11 11!11 11,i APPROVED: BOARD OF COUNTY COMMISSIONERS KITTITAS COUNTY, WASHINGTON \\\ I,; ,,,~ c,o MM tss ,,,,,. .i' ~--1. ............... 'o.tv.AUest: ~~ ,• •. ~.,, $ ~ .·· ·-. ~~ ::: 0 .. ·. tJl -;;. • .::u: -----·. :: ~ { SEAL :·zh . / "71 ~ ~1..,L · \~\. ---/ _t Ierk of t hl Board-Julie Kjorsvik -~ ~ ·.. .·· ~ ~ ",-,'l,-<1.. ;_s1~:· ........ ·-~s'<',ls! Deputy Clerk of the Board-Mandy Buchholz ,,.., -vu1,.nv \l'J r· ,,, IJ // I ~ 1 I \\\ ,,,,,,,1111111 11'' By : __________ _ Douglas R Mitchell Deputy Prosecuting At County's Address: Kittitas County 205 West 5th Avenue, Suite '2-l \ Ellensburg , WA 98926 EXHIBIT A Investment Summary l'he following Investment Summary details the software and services to be delivered by us to you under the Agreement. l his Investment Summary is effective as of the Effective Date. Capitalized terms not otherwise defined will have the meaning assigned to such terms in the Agreern ent. f>rofess io nal Serv i ces a1 1d Dc:livcr·ablc Cost. One-Time Costs Setup Services Project Management PM is not required for the scope of this project. 1 Data Conversion No data conversion included in scope of this project. Deployment Setup This is a one-time fee that covers any necessary changes to system lookup tables and the provisioning of space on Tyler Supervision_ serv~_rs. Setup, Configuration, and Consulting One-time fee that covers several conference calls to confl~ure t_he system. Training End user training. Additional training can be provided upon request at the same hourly r ate. Go-Live Assistance Aclditlonal Ty)er staff to assist with transition to new system. Price QTY $185 .00 0 $165.00 TBO $165.00 4 hours $165 .00 20 hours $150.00 4 hours $150.00 a hcm,s One-Time Implementation Cost Subtotal: Cost SO.DO $0.00 $660.00 $3,300.00 $GOO.DO $1,2.00.00 $5,760.00 Total implementation cost will be invoiced upon completion of training. License and Hosting Fees Recurring Costs Subsfriptions r Case Management User-Juvenile Division Only A user shall be defined as an individual person who has an active login to access any areas of Tyler Supervision with Add, Edit, Modify and Delete permissions. Fees will increase annually by 5% at the beginn ing of every year. Case Management User -Read Only A user shall be defined as an individual person who has an active login to access any areas of Tyler Supervision and can only read data. The user cannot run or generate reports . QTY Cost Enterprise $10,800.00 Unlimited $0.00 Recurring Fixed Annual Total $10,800.00 • • •• •• •• tyler ,--chnuli;· .~ EXHIBIT B Invoicing and Payment Policy We will provide you with the software and services set forth in the Investment Summary of the Agreement. Capitalized terms not otherwise defined will have the meaning assigned to such terms in the Agreement . Invo k ing : We will invoice you for the applicable software and services in the Investment Summary as set forth below. Your rights to dispute any invoice are set forth in the Agreement . 1. Saas Fees. Saas Fees are invoiced on an annual basis, beginning on the commencement of the Initial Term as set forth in Section F (1) of this Agreement. Your annual Saas fees for the Initial Term are set forth in the Investment Summary. Your annual Saas fees during any Renewal Term will be at our then-current rates. 2. Other Ty ler Software and .Ser vices. 2 .1 Implementation and other professional services (including training) are billed and invoiced as delivered, at the rates set forth in the Investment Summary. 3. Third Party Products (if applicable). 3.1 Third Party Software License Fees: License fees for Third Party Software, if any, are invoiced when we make it available to you for downloading. 3 .2 Third Party Software Maintenance: The first -year maintenance for the Third Party Software is invoiced when we make it available to you for downloading . 3.3 Third Party Hardware: Third Party Hardware costs, if any, are invoiced upon delivery. 4 . Expenses. The service rates in the Investment Summary do not include travel expenses. Expenses will be billed as incurred and only in accordance with our then-current Business Travel Policy . Our current Business Travel Policy is attached to this Exhibit Bat Schedule 1. Copies of receipts will be provided upon reque st ; we reserve the right to charge you an administrative fee depending on the extent of your requests . Receipts for miscellaneous items less than twenty-five dollars and mileage logs are not available. Payment. Payment for undisputed invoices is due within forty-five (45) days ofthe invoice date. We prefer to receive payments electronically. Our electronic payment information is: Bank: ABA: Account: Beneficiary: Wells Fargo Bank, N.A. 420 Montgomery San Francisco, CA 94104 121000248 4124302472 Tyler Technologies, Inc. -Operating EXHIBIT B Schedule 1: Business Travel Policy 1. Air Travel A. Reservations & Tickets Tyler's Travel Management Company (TMC) will provide an employee with a direct flight within two hours before or after the requested departure time, assuming that flight does not add more than three hours to the employee's total trip duration and the fare is within $100 (each way) of the lowest logical fare. If a net savings of $200 or more (each way) is possible through a connecting flight that is within two hours before or after the requested departure time and that does not add more than three hours to the employee's total trip duration, the connecting flight should be accepted. Employees are encouraged to make advanced reservations to take full advantage of discount opportunities. Employees should use all reasonable efforts to make travel arrangements at least two (2) weeks in advance of commitments. A seven (7) day advance booking requirement is mandatory. When booking less than seven (7) days in advance, management approval will be required. Except in the case of international travel where a segment of continuous air travel is six (6) or more consecutive hours in length, only economy or coach class seating is reimbursable. Employees shall not be reimbursed for "Basic Economy Fares" because these fares are non-refundable and have many restrictions that outweigh the cost-savings. B. Baggage Fees Reimbursement of personal baggage charges are based on trip duration as follows : Up to five (5) days= one (1) checked bag Six (6) or more days= two (2) checked bags Baggage fees for sports equipment are not reimbursable . 2. Ground Transportation A. Private Automobile Mileage Allowance -Business use of an employee's private automobile will be reimbursed at the current IRS allowable rate, plus out of pocket costs for tolls and parking. Mileage will be calculated by using the employee's office as the starting and ending point, in compliance with IRS regulations. Employees who have been designated a home office should calculate miles from their home. B. Rental Car Employees are authorized to rent cars only in conjunction with air travel when cost, convenience, and the specific situation reasonably require their use. When renting a car for Tyler business, employees should select a "mid-size" or "intermediate" car. "Full" size cars may be rented when three or more employees are traveling together. Tyler carries leased vehicle coverage for business car rentals; except for employees traveling to Alaska and internationally (excluding Canada), additional insurance on the rental agreement should be declined. C. Public Transportation Taxi or airport limousine services may be considered when traveling in and around cities or to and from airports when less expensive means of transportation are unavailable or impractical. The actual fare plus a reasonable tip (15-18%) are reimbursable. In the case of a free hotel shuttle to the airport, tips are included in the per diem rates and will not be reimbursed separately. D. Parking & Tolls When parking at the airport, employees must use longer term parking areas that are measured in days as opposed to hours. Park and fly options located near some airports may also be used. For extended trips that would result in excessive parking charges, public transportation to/from the airport should be considered . Tolls will be reimbursed when receipts are presented. 3. Lodging Tyler's TMC will select hotel chains that are well established , reasonable in price, and conveniently located in relation to the traveler's work assignment. Typical hotel chains include Courtyard, Fairfield Inn, Hampton Inn, and Holiday Inn Express . If the employee has a discount rate with a local hotel, the hotel reservation should note that discount and the employee should confirm the lower rate with the hotel upon arrival. Employee memberships in travel clubs such as AAA should be noted in their travel profiles so that the employee can take advantage of any lower club rates. "No shows" or cancellation fees are not reimbursable if the employee does not comply with the hotel's cancellation policy. Tips for maids and other hotel staff are included in the per diem rate and are not reimbursed separately. Employees are not authorized to reserve non-traditional short-term lodging, such as Airbnb, VRBO, and HomeAway. Employees who elect to make such reservations shall not be reimbursed . 4. Meals and Incidental Expenses dinner. Employee meals and incidental expenses while on travel status within the continental U.S . are in accordance with the federal per diem rates published by the General Services Administration. Incidental expenses include tips to maids, hotel staff, and shuttle drivers and other minor travel expenses. Per diem rates are available at www .gsa.govmerdlem . Per diem for Alaska, Hawaii, U.S. protectorates and international destinations are provided separately by the Department of Defense and will be determined as required. A. Overnight Travel For each full day of travel, all three meals are reimbursable. Per diems on the first and last day of a trip are governed as set forth below. Departure Da.y Depart before 12:00 noon Depart after 12:00 noon Return Day Return before 12 :00 noon Return between 12:00 noon & 7:00 p .m. Return after 7:00 p.m.* Lunch and dinner Dinner Breakfast Breakfast and lunch Breakfast, lunch and dinner *7:00 p.m . is defined as direct travel time and does not include time taken to stop for The reimbursement rates for individual meals are calculated as a percentage of the full day per diem as follows : Breakfast 15% Lunch 25% Dinner 60% B. Same Day Travel Employees traveling at least 100 miles to a site and returning in the same day are eligible to claim lunch on an expense report. Employees on same day travel status are eligible to claim dinner in the event they return home after 7 :00 p .m. * *7:00 p.m. is defined as direct travel time and does not include time taken to stop for dinner. 5. Internet Access -Hotels and Airports Employees who travel may need to access their e-mail at night . Many hotels provide free high -speed internet access and Tyler employees are encouraged to use such hotels whenever possible . If an employee's hotel charges for internet access it is reimbursable up to $10.00 per day . Charges for internet access at airports are not reimbursable. 6. International Travel All international flights with the exception of flights between the U.S. and Canada should be reserved through TMC using the "lowest practical coach fare" with the exception of flights that are six (6) or more consecutive hours in length . In such event, the next available seating class above coach shall be reimbursed. When required to travel internationally for business, employees shall be reimbursed for photo fees, application fees, and execution fees when obtaining a new passport book, but fees related to passport renewals are not reimbursable. Visa application and legal fees, entry taxes and departure taxes are reimbursable . The cost of vaccinations that are either required for travel to specific countries or suggested by the U.S. Department of Health & Human Services for travel to specific countries, is reimbursable. Section 4, Meals & Incidental Expenses, and Section 2 .b ., Rental Car, shall apply to this section. ••• ••• • EXHIBIT C Service Level Agreement I. Agreement Overview This SLA operates in conjunction with, and does not supersede or replace any part of, the Agreement. It outlines the information technology service levels that we will provide to you to ensure the availability of the application services that you have requested us to provide. All other support services are documented in the Support Call Process. II. Definitions. Except as defined below, all defined terms have the meaning set forth in the Agreement. Attainment: The percentage of time the Tyler Software is available during a calendar quarter, with percentages rounded to the nearest whole number. Client Error Incident: Any service unavailability resulting from your applications, content or equipment, or the acts or omissions of any of your service users or third-party providers over whom we exercise no control. Downtime: Those minutes during which the Tyler Software is not available for your use. Downtime does not include those instances in which only a Defect is present. Service Availability: The total number of minutes in a calendar quarter that the Tyler Software is capable of receiving, processing, and responding to requests, excluding maintenance windows, Client Error Incidents and Force Majeure. Ill. Service Availability The Service Availability of the Tyler Software is intended to be 24/7 /365. We set Service Availability goals and measures whether we have met those goals by tracking Attainment. a. Your Responsibilities Whenever you experience Downtime, you must make a support call according to the procedures outlined in the Support Call Process. You will receive a support incident number. You must document, in writing, all Downtime that you have experienced during a calendar quarter. You must deliver such documentation to us within 30 days of a quarter's end. The documentation you provide must evidence the Downtime clearly and convincingly. It must include, for example, the support incident number(s) and the date, time and duration of the Downtime(s). b. Our Resp on si biliti es When our support team receives a call from you that Downtime has occurred or is occurring, we will work with you to identify the cause of the Downtime (including whether it may be the result of a Client Error Incident or Force Majeure). We will also work with you to resume normal operations. Upon timely receipt of your Downtime report, we will compare that report to our own outage logs and support tickets to confirm that Downtime for which we were responsible indeed occurred. We will respond to your Downtime report within 30 day(s) of receipt. To the extent we have confirmed Downtime for which we are responsible, we will provide you with the relief set forth below. IV. Applicability The commitments set forth in this SLA do not apply during maintenance windows, Client Error Incidents, and Force Majeure. We perform maintenance during limited windows that are historically known to be reliably low-traffic times. If and when maintenance is predicted to occur during periods of higher traffic, we will provide advance notice of those windows and will coordinate to the greatest extent possible with you. V.. Force Majeure You will not hold us responsible for not meeting service levels outlined in this SLA to the extent any failure to do so is caused by Force Majeure. In the event of Force Majeure, we will file with you a signed request that said failure be excused. That writing will at least include the essential details and circumstances supporting our request for relief pursuant to this Section. You will not unreasonably withhold its acceptance of such a request. tyler I ~--i.hr I ii[),. I~- EXHIBITC Schedule 1: Support Call Process Support Channels Tyler Technologies, Inc. provides the following channels of software support for authorized users: (1) On-line submission (portal) -for less urgent and functionality-based questions, users may create unlimited support incidents through the customer relationship management portal available at the Tyler Technologies website. (2) Email -for less urgent situations, users may submit unlimited emails directly to the software support group. (3) Telephone -for urgent or complex questions, users receive toll-free, unlimited telephone software support. Support Resources Additional resources are available to provide a comprehensive and complete support experience: (1) CaseloadPro Website (http://www.cas eloadpro.co_r:Q/) -for accessing client tools, documentation, and other information including support contact information. (2) Community Resources -an on-line resource, Tyler Community provides a venue for all Tyler clients with current maintenance agreements to collaborate with one another, share best practices and resources, and access documentation. (3) Knowledge Base - a repository documentation that can assist clients in answering questions or troubleshooting and resolving commonly known issues. Support Availability Tyler Technologies support is available during the local business hours of 8 AM to 5 PM (Monday -Friday, Pacific). Tyler's holiday schedule is outlined below. There will be no support coverage on these days. New Year's Day Thanksgiving Day Memorial Day Day after Thanksgiving Independence Day Christmas Day Labor Day We will provide you with procedures for contacting support staff after normal business hours for reporting Priority Level 1 Defects only. Upon receipt of such a Defect notification, we will use commercially reasonable efforts to meet the resolution targets set forth below. We will also make commercially reasonable efforts to be available for one pre-scheduled Saturday of each month to assist your IT staff with applying patches and release upgrades, as well as consulting with them on server maintenance and configuration of the Tyler Software environment. Issue Handling Incident Tracking Every support incident is logged into our management system and given a unique incident number. This system tracks the history of each incident. The incident tracking number is used to track and reference open issues when clients contact support. Clients may track incidents, using the incident number, through the portal at Tyler's website or by calling software support directly. Incident Priorit y Each incident is assigned a priority level, which corresponds to the client's needs and deadlines. Tyler and the client will reasonably set the priority of the incident per the chart below. This chart is not intended to address every type of support incident, and certain "characteristics" may or may not apply depending on whether the Tyler software has been deployed on customer infrastructure or the Tyler cloud. The goal is to help guide the client towards clearly understanding and communicating the importance of the issue and to describe generally expected response and resolution targets in the production environment only. References to a "confirmed support incident" mean that Tyler and the client have successfully validated the reported Defect/support incident. Priority Characteristics of Support Incident Resolution Targets Level Support incident that causes (a) Tyler shall provide an initial response to complete application failure or Priority Level 1 incidents within one (1) application unavailability; (b) business hour of receipt of the incident. application failure or unavailability Once the incident has been confirmed, Tyler 1 in one or more of the client's shall use commercially reasonable efforts to Critical remote location; or (c) systemic resolve such support incidents or provide a loss of multiple essential system circumvention procedure within one (1) functions. business day. For non-hosted customers, Tyler's responsibility for lost or corrupted data is limited to assisting the client in restoring its last available database. Support incident that causes (a) Tyler shall provide an initial response to repeated, consistent failure of Priority Level 2 incidents within four (4) 2 essential functionality affecting business hours of receipt of the incident. High more than one user or (b) loss or Once the incident has been confirmed, Tyler corruption of data. shall use commercially reasonable efforts to resolve such support incidents or provide a I' I Priority Characteristics of Support Incident Resolution Targets Level circumvention procedure within ten (10) business days. For non-hosted customers, Tyler's responsibility for loss or corrupted data is limited to assisting the client in restoring its last available database. Priority Level 1 incident with an Tyler shall provide an initial response to existing circumvention procedure, Priority Level 3 incidents within one (1) or a Priority Level 2 incident that business day of receipt of the incident. Once affects only one user or for which the incident has been confirmed, Tyler shall there is an existing circumvention use commercially reasonable efforts to 3 procedure. resolve such support incidents without the Medium need for a circumvention procedure with the next published maintenance update or service pack, which shall occur at least quarterly. For non-hosted customers, Tyler's responsibility for lost or corrupted data is limited to assisting the client in restoring its last available database. Support incident that causes Tyler shall provide an initial response to failure of non-essential Priority Level 4 incidents within two (2) 4 functionality or a cosmetic or business days of receipt of the incident. Non-other issue that does not qualify Once the incident has been confirmed, Tyler critical as any other Priority Level. shall use commercially reasonable efforts to resolve such support incidents, as well as cosmetic issues, with a future version release. Incident Escalation Tyler Technologies' software support consists of the following: (1) Account Representatives: responsible for responding to and resolving incidents, as well as day-to-day account management. (2) Account Representatives: development staff responsible for providing technical assistance to the support representatives. (3) Support Managers: responsible for the management of support teams. (4) If Tyler is unable to resolve any priority level 1 or 2 defect as listed above or the priority of an issue has elevated since initiation, you may escalate the incident to your Support Manager. Your Support Manager will meet with you and any Tyler staff to establish a mutually agreeable plan for addressing the defect. Any issues or incidents that remain unresolved will be escalated to the General Manager of Tyler Supervision. Remote Support To ol Some support calls may require further analysis of the client's database, processes or setup to diagnose a problem or to assist with a question. Tyler will, at its discretion, use an industry- standard remote support tool. Tyler's support team must have the ability to quickly connect to the client's system and view the site's setup, diagnose problems, or assist with screen navigation. More information about the remote support tool Tyler uses is available upon request. EXHIBITD Third Party Terms We will make commercially reasonable efforts to minimize the need for you to rely on Third Party Software or Third Party Hardware in order to operate the Tyler Software . To the any such Third Party Product is required, you are responsible for purchasing, installing and configuring all Third Party Hardware and Third Party Software at your expense. We will make available a list of Third Party Software that will be required to load a new release of the Tyler Software, if any, as well as list of Third Party Software components that have been certified as compatible with the Tyler Software. We will have no liability for defects in the Third Party Hardware or Third Party Software. You are responsible for ensuring that you have current maintenance agreements with any Developers from whom you expect to receive maintenance and/or support on Third Party Software or Third Party Hardware.