HomeMy WebLinkAboutResolution - 2006-R0178 - System Agreement - Tyler Technologies Inc. INCODE Division - 04_13_2006Resolution No. 2006-RO178
April 13, 2006
Item No. 5.25
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a System Agreement and all
related documents between the City of Lubbock and Tyler Technologies, Inc. INCODE
Division. Said Agreement is attached hereto and incorporated in this Resolution as if
fully set forth herein and shall be included in the minutes of the Council.
Passed by the City Council this 13th da
ATTEST:
Rebecca Garza, City Secret
Robert f)oty, I
Municipal Judge
APPROVED AS TO
(Linda L. Chamales, Senior Attorney
Office Practice Section
Lc: City Att/Linda/RES-Tyler Tech. — INCODE
January 3, 2006
051:41
CUSTOMER Copy
City of Lubbock, TX
April 11, 2006
Resolution No. 200640118
April 13, 2006
Item No. 5.25
Tyler Technologies, Inc.
INCODE Division
5808 4'h Street
Lubbock, Texas 79416
800.646.2633
www.incode-inc.com
tyler works.
t y l e r works. Tyler Technologies, Inc. INCODE Division
5808 4th Street Lubbock, TX 79416 Tel: 600-646-2633 Fax: 806-797-4849 www.tyler-incode.com
April 11, 2006
Judge Robert Doty
City of Lubbock
915 Avenue J
Lubbock, TX 79457
Dear Judge Doty,
We appreciate the trust and confidence you have placed in INCODE by choosing to purchase our Municipal
Court Solution for the City of Lubbock. We will do our best to honor your trust with quality products and
support.
I am enclosing INCODE's standard agreements for you to review. These agreements outline the products
and services purchased and the governing language establishing our respective responsibilities. During your
review, if you have any questions about these agreements, please call Lee Midkiff or Lori Dudley.
Please return an executed copy of these agreements to INCODE, attn: Lori Dudley Marketing Coordinator,
via Federal Express or UPS. If the agreements are not returned within 90 days from the issue date, they will
be voided and prices are subject to change. Additionally, please keep one copy for your records.
In addition, please return a completed copy of your state's Sales and Use Tax Exemption Certification and/or
Resale Certificate. We are required to charge sales tax unless we receive this documentation. Also, please
verify the files to be converted by INCODE, if any. If all the files that you have requested to be converted are
not included in these agreements, then please notify us immediately.
When the signed and executed agreements have been received by the INCODE office, implementation will
proceed. You will receive communication regarding the following documents:
• A Customer Survey
• The InVision Hardware System Requirements
• Sample Forms Packet (if applicable)
• Conversion Statement (if applicable)
• Customer Signature Page
• Additional items as needed
Once the appropriate items are reviewed, completed and returned to INCODE, our Scheduling Coordinator
will contact you to facilitate the implementation process.
Again, thank you for choosing INCODE. We look forward to working with you and the other staff members at
the City of Lubbock.
Sincerely,
v (jtJ ,a
Dane Womble
Executive Vice President, Client Services — INCODE Division
(. 9
System Agreement
Between
Tyler Technologies, Inc.
INCODE Division
5808 4th Street
Lubbock, Texas 79416
(800) 646-2633
(806) 797-4849 Fax
"X�1
City of Lubbock
915 Avenue J
Lubbock, TX 79457
Phone: 806-775-2473
Fax: 806-775-2164
tyl erwork.r.
A
tylerworks.
Tyler Technologies i INCODE Division
AGREEMENT
This agreement is entered into by and between Tyler Technologies, Inc., INCODE Division,
hereinafter referred to as INCODE, located at 5808 4th Street, Lubbock, Texas 79416; and; City of Lubbock
hereinafter referred to as Client on, April 13 , 2oo6.
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.
This Agreement consists of this Cover and the following Attachments and Exhibits:
Section A
Investment Summary (A-F)
Section B
General Payment Terms
Section C
Software License Agreement
Section D
Professional Services Agreement
Section E
Annual Software Maintenance Agreement
Section F
Hardware and System Software Agreement
Section G
Annual Hardware Maintenance Agreement
Section H
Exhibit 1 - Delivery Attestment
Section 1
Data Conversion Process document
Section J
Software Source Cade Escrow 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 swam 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,
Tyler T ogles, Inc. ODE Divi ' u:
Bv:
Signature
Executive Vice President, Client Services - INCODE Division
Tile
4/11/06
Issue Date
Sales Tax Certificate Number
Approved as to Form:
Signature
City Attorney
Title , —12_ D4
Date
ApproFedto Content:
By , I�
Sig otdfe " -v • /
Presiding Judge
Title � /
Date ^� —taw
Attest:
g �
Si
Signature ;
City Secretary, Rebecca Garza
Title
April 13, 2006
Date
tylerworks.
CW— N—
Chy
mot:
Ro D.'Y
Tyler Txhnoloqltl I INCODE Wgim
April 11, xW
MMff
Investment Summary
Prepared r—
Ory or Labbo&
C.—t Ptr—
Robert Doty
1s111e D.W.
4/11106
Address
913 Aco J
Lubbock, TX 79457
S.]n :
L-Midkiff/
Pb—
806-775-2473
J.Di—
F-:
SM-775-2164
E-11:
F&tYQtlwl.cMWAwk.M.M
T. E—pt:
Y"
5.305,00
1.42100
Ta.J Kwd— & Syt— 9o8w4n
8,305.00
T.tW Applb k— Sft—
L— F—
17,066.50
6812W.00
34.133.00
17,066,60
34,133,W
170,M.00
34.708.00
TWO Prft"b-w S.M..
1—,Wb'en a C—%WAb-V svt—
600.00
600.00
Cln-SM9 Swvbas
19,200.00
19.20000
Fl,.V I.Ww—tft.
5.760.00
5,760.00
P,qW U—ag.~
7,000.00
7,000.00
� P(qCo
2,660.00
2,880.00
= Oala C—bm & AW
15,900.00
15000.00
E.tLm,i,d Trwe
Estimated Harchvse T-1 Ekpenae
3200
3200
Estmaw OnM& Ss l— Travel Expense
705.00
I05.00
U,.MTied /MpW..W&. Tray EV—
220
220.00
E sil—W PM). d C— A-9 Travel EsPansa
110.00
110.00
E,f—W Oda C--A...I— 7-1 Flp—
1400
94.00
c
tylerworks. Customer Name:
City of Lubbock
Contact:
Robert Doty
Tyler Technologies I INCODE Division Date:
April 11, 20D6
Salesman:
Lee Mldktff
Software Licenses and Professional Services
Application Software
CITY
License Fee Conversion
Estimated
Hours
Estimated
Services
Total Cost
YEARLY
MAINTENANCE
Court Case Management
Court Case Management
1
130,000 15,900
120
14,400
160,300
26,00(
Centralized Cash Collections
1
15,000
15
1'8()0
16,8W
3,00(
Court HandhNd Interface- Clancey
1
2,500
N/A
N/A
2,500
50(
INCODE Central
INCODE Central (INCODE Online & INCODE Help)
I
NIA
NIA
N/A
N/A
We
MIC & INCODE Today (Scheduling, Messaging & Report Subscription)
1
6,000
8
960
6,960
1,201
Printing and Reporting Solutions
Report Writer
1
8,600
10
1.200
9,700
1,70C
(One Designer, Unlimited Viewer, subscription to reports online)
Additional Designer
1
500
2
240
740
10C
Forms Overlay
1
1.500
VA
N/A
1,500
30C
(5 Overlays for Court,, 2 Logo)
Secure Signatures (includes 2 signatures)
1
1,000
N/A
N/A
1,000
200
Each Signature (scan and prepare for use)
1
125
NIA
N/A
125
N/A
Professional Services
Network Support
1
600
600
600
Project Management
1
7,000
7.000
Project Consulting
1
24
2.880
2,880
Final Implementation
1
48
5,760
5,760
System Software
AcuCorp AcuServer Distributed Data Server Software (L)
1
2,000
N/A
2,000
400
- Unlimited users
AcuCorp Accu4GI- (for SOL Server) # users (L)
29
2,820
N/A
2,820
564
AccuODBC # users (L)
1 3
720
1
N/A
7201
144
N COD'ub'ota'
165,125 15,900 155
19,200
200.225
33,600
INCODESoftware
Subtotal System
5,540
5,540
1,108
'A
Project Management
7,000
7,000
V
Project Consulting
24
2,880
2,880
1
Final Implementation
48
5,760
5,760
Total
170,665 15,900 227
34,840
221,405
34,7081
D
t y 1 e r wo rks.
Customer Name:
City of Lubbock
Contact:
Robert Doty
Tyler Technologies I INCODE Division
Date:
April 11, 2003
Salesman:
Lee Midkiff
Conversion Breakdown
Application Software Convention Programming Fes Estimated Hours Estimated Servlaes
Municipal Court
Ticket Master File(Subject to change based on Vendor)
13,500 20 2,400
Warrant Master File
Included
Docket Master File
Included
Conversion Total 13,500 20 2,40I
E
t f e r w o rk s.
Customer Name:
City of Lubbock
y
Contact:
Robert Dory
Tyler Technologies I INCODE Division
Date:
April 11, 2006
Salesman:
Lee Midkiff
casn uollectlon rlaraware
Misc. Hardware and Network Equip,
CITY Purchase Price
Installation
Expenses
Annual
Maintenance Maintenance Source
Cash Collection
Epson TM-U950P Receipt Validation Printer (Parallel) (L)
7 7,105
1,421 INCODE - 12 mos warranty
Mag Stripe Reader (L)
6 1,200
Installation and Configuration of System (# of Hours)
5
600
Tota(
8,305
600
1,421
F
COMPANY AGREEMENT
TERMS AND CONDITIONS
Section B - General Payment Terms
1. CLIENT will pay to COMPANY an
initial deposit upon execution of this
Agreement that equals 10% of the
Application Software License Fees and
100% of the Hardware and System
Software License Fees.
2. CLIENT will pay a second
installment to COMPANY upon delivery
of the software products that equals 40%
of the Application Software License
Fees; Delivery Attestment is included as
Exhibit 1 (Parent Section H). At this
time, software is installed on CLIENT's
system and CLIENT is able to
manipulate a test database.
3. CLIENT will pay a third installment
to COMPANY upon Go -Live, defined as
CLIENT is using software for operations
- no material issues remain, that equals
20% of the Application Software
License Fees.
4. CLIENT will pay a fourth
installment to COMPANY upon
completion of data conversion that
equals 10% of the Application Software
License Fees,
S. The remaining 20% balance of the
total amount specified in this Agreement
for all products and License fees shall be
paid after (a) COMPANY's verification
of the software products, or (b)
CLIENT's completion of its own
validation process. In no case, shall this
period exceed thirty (30) days from live
processing or one hundred -eighty (180)
days from installation of the software.
6. Services shall be billed as delivered
plus expenses and are due and payable
net 30 days.
1
COMPANY AGREEMENT
TERMS AND CONDITIONS
r
Section C - Software License
Agreement
1) Software Product License.
a) Upon mutual execution of this
Agreement, COMPANY shall grant
CLIENT a provisional license to use the
software products during training and
implementation. Upon CLIENT's
payment for the software products listed
in the Investment Summary of this
Agreement, for the license fees set forth
in the Investment Summary,
COMPANY shall grant to CLIENT and
CLIENT shall accept from COMPANY
a non-exclusive, nontransferable,
nonassignable license to use the software
products and accompanying
documentation for internal business
purposes of CLIENT, subject to the
conditions and limitations in this
Software License Agreement.
b) Ownership of the software products,
r�
accompanying documentation and
related materials, and any modifications
and enhancements to such software
products and any related interfaces shall
remain with COMPANY.
c) The software products are not licensed
to perform functions or processing for
subdivisions or entities that were not
considered by COMPANY at the time
COMPANY 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 of any
such transfer shall be provided to
COMPANY.
e) CLIENT agrees that the software
products, any modifications and
enhancements and any related interfaces
are proprietary to COMPANY and have
w
been developed as a trade secret at
COMPANY's expense. CLIENT agrees
to keep the software products
confidential and use its best efforts to
prevent any misuse, unauthorized use or
unauthorized disclosures by any party of
any or all of the software products or
accompanying documentation.
f) If CLIENT has made modifications to
the software products, COMPANY will
not support or correct errors in the
modified software products, unless
modifications were specifically
authorized in writing by COMPANY.
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) COMPANY maintains an escrow
agreement with an Escrow Services
Company under which COMPANY
places the source code of each major
release. At CLIENT's request,
COMPANY will add CLIENT as a
beneficiary on its escrow account.
CLIENT will be invoiced the annual
beneficiary fee by COMPANY and is
solely responsible for maintaining its
status as a beneficiary.
2) License Fees.
a) CLIENT agrees to pay COMPANY,
and COMPANY agrees to accept from
CLIENT as payment in full for the
license herein, the total sum of the
COMPANY license fees set forth in the
Investment Summary.
b) The license fees listed in the
Investment Summary do not include any
tax or other governmental impositions
1
COMPANY AGREEMENT
TERMS AND CONDITIONS
including, without limitation, sales, use
or excise tax. All applicable sales tax,
use tax or excise tax shall be paid by
CLIENT and shall be paid over to the
proper authorities by CLIENT or
reimbursed by CLIENT to COMPANY
on demand in the event that COMPANY
is responsible or demand is made on
COMPANY for the payment thereof. If
tax-exempt, CLIENT must provide
COMPANY with CLIENT's tax-exempt
number or form.
c) In the event of any disputed invoice,
CLIENT shall provide written notice of
such disputed invoice to Attention:
COMPANY Controller at the address
listed on the cover of this Agreement.
Such written notice shall be provided to
COMPANY within fifteen (15) days. An
additional fifteen (15) days is allowed
for the CLIENT to provide written
clarification and details for the disputed
invoice. COMPANY shall provide a
written response to CLIENT that shall
include either a justification of the
invoice or an explanation of an
adjustment to the invoice and an action
plan that will outline the reasonable
steps needed to be taken by COMPANY
and CLIENT to resolve any issues
presented in CLIENT's notification to
COMPANY. CLIENT may withhold
payment of only the amount actually in
dispute until COMPANY provides the
required written response, and full
payment shall be remitted to
COMPANY upon COMPANY's
completion of all material action steps
required to remedy the disputed matter.
Notwithstanding the foregoing sentence,
if COMPANY is unable to complete all
material action steps required to remedy
the disputed matter because CLIENT has
not completed the action steps required
of them, CLIENT shall remit full
payment of the invoice.
d) Any invoice not disputed as described
above shall be deemed accepted by the
CLIENT. If payment of any invoice that
is not disputed as described above is not
made within sixty (60) calendar days,
COMPANY reserves the right to
suspend delivery of all services under
the Investment Summary, this Software
License Agreement, the Professional
Services Agreement, the Maintenance
Agreement and, if applicable, the Third
Party Product Agreement.
3) Verification of the Software
Products.
a) At the CLIENT's request, within thirty
(30) days after the software products
have been installed on CLIENT's
system, COMPANY will test the
software products in accordance with
COMPANY's standard verification test
procedure. Demonstration shall
constitute CLIENT's verification that the
software products substantially comply
with COMPANY's documentation for
the most current version of the software
products and functional descriptions of
the software found in COMPANY's
written proposal to CLIENT. Upon such
verification, CLIENT shall pay the
remaining balance in accordance with
the payment terms listed in Section
General Payment Terms or amended in
any attached addendum.
b) At its option, CLIENT may perform
CLIENT's own defined internal
validation process to test the software to
substantially comply with COMPANY's
documentation for the most current
version of the software products and
functional descriptions of the software
found in COMPANY's written proposal
to CLIENT. Such validation test shall
constitute CLIENT's verification. Upon
2
COMPANY AGREEMENT
TERMS AND CONDITIONS
such validation, CLIENT shall pay the
remaining balance in accordance with
the payment terms listed in Section
General Payment Terms or amended in
any attached addendum.
c) Notwithstanding anything contrary
herein, CLIENT's use of the software
products for its intended purpose, shall
constitute CLIENT's verification of the
software products, without exception
and for all purposes.
d) Verification or validation, by
CLIENT, that the software products
substantially comply with COMPANY's
documentation for the most current
version of the software products and
functional descriptions of the software
found in COMPANY's written proposal
to CLIENT shall be final and conclusive
except for the operation of any provision
of this Agreement which specifically
survives verification. In the event said
verification becomes other than final, or
becomes inconclusive, pursuant to this
paragraph, CLIENT's sole right and
remedy against COMPANY shall be to
require COMPANY to correct the cause
thereof, except in the case of latent
defect, fraud, or such gross mistakes that
amount to fraud.
e) COMPANY shall correct any
functions of the software products which
failed the standard verification testing or
failed to comply with COMPANY's
documentation for the most current
version of the software products and
functional descriptions of the software
found in COMPANY's written proposal
to CLIENT. If CLIENT has made
modifications to the software programs,
COMPANY will not make such
corrections, unless such modifications
were specifically authorized in writing
by COMPANY.
4) Schedule of Verification.
COMPANY will install the software
products and cause the same to be
verified within sixty (60) days after
CLIENT makes available to COMPANY
the equipment into which the software
product is to be loaded. COMPANY
shall exercise reasonable efforts to cause
the software products to be verified
according to the schedule set forth in this
paragraph, but COMPANY shall not be
liable for failure to meet said schedule if,
and to the extent, said failure is due to
causes beyond the control and without
the fault of COMPANY.
5) Limited Warranty. COMPANY
warrants that the then current,
unmodified version of the COMPANY
Software Products will substantially
conform to the then current version of its
published Documentation. If the
Software Products do not perform as
warranted, COMPANY's obligation will
be to use reasonable efforts, consistent
with industry standards, to cure the
defect. Should COMPANY be unable to
cure the defect or provide a replacement
product, satisfactory to CLIENT,
CLIENT shall be entitled to a refund for
the license fee paid for application.
THIS WARRANTY IS IN LIEU OF
ALL OTHER WARRANTIES. TO THE
MAXIMUM EXTENT PERMITTED
UNDER APPLICABLE LAW, ALL
OTHER WARRANTIES,
CONDITIONS AND
REPRESENTATIONS, WHETHER
EXPRESS, IMPLIED OR VERBAL,
STATUTORY OR OTHERWISE, AND
WHETHER ARISING UNDER THIS
AGREEMENT OR OTHERWISE ARE
HEREBY EXCLUDED, INCLUDING,
WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF
3
COMPANY AGREEMENT
TERMS AND CONDITIONS
MERCHANTABILITY AND FITNESS
as depreciated on a straight-line basis
FOR A PARTICULAR PURPOSE.
over a period of seven (7) years with
6) Limitation of Liability.
such depreciation to commence on the
a) In the event that the software products
execution of this Agreement.
are determined to infringe upon any
COMPANY shall have no liability
existing United States patent copyright
hereunder if CLIENT modified the
or trademark rights held by any other
software products in any manner without
person or entity, COMPANY shall
the prior written consent of COMPANY
defend and hold harmless CLIENT and
and such modification is determined by a
its officers, agents and employees from
court of competent jurisdiction to be a
any claim or proceedings brought
contributing cause of the infringement or
against CLIENT and from any cost
if the infringement would have been
damages and expenses finally awarded
avoided by CLIENT's use of the most
against CLIENT which arise as a result
current revision of the software products.
of any claim that is based on an assertion
The foregoing states COMPANY's
that CLIENT's use of the software
entire liability and CLIENT's exclusive
products under this Software License
remedy with respect to any claims of
Agreement constitutes an infringement
infringement of any copyright, patent,
of any United States patent, copyright or
trademark, or any property interest rights
trademark provided that CLIENT
by the software products, any part
notifies COMPANY promptly of any
thereof, or use thereof.
such claim or proceeding and gives
b) THE RIGHTS AND REMEDIES
COMPANY full and complete authority,
SET FORTH IN THIS SOFTWARE
information and assistance to defend
LICENSE AGREEMENT ARE
such claim or proceeding and further
EXCLUSIVE AND IN LIEU OF ALL
provided that COMPANY shall have
OTHER RIGHTS AND REMEDIES OR
sole control of the defense of any claim
WARRANTIES EXPRESSED,
or proceeding and all negotiations for its
IMPLIED OR STATUTORY,
compromise or settlement provided that
INCLUDING WITHOUT
COMPANY shall consult with CLIENT
LIMITATION THE WARRANTIES OF
regarding such defense. In the event that
MERCHANTABILITY, FITNESS FOR
the software products are finally held to
A PARTICULAR PURPOSE AND
be infringing and its use by CLIENT is
SYSTEM INTEGRATION.
enjoined, COMPANY shall, at its
c) In no event shall COMPANY be
election; (1) procure for CLIENT the
liable for special, indirect, incidental,
right to continue use of the software
consequential or exemplary damages,
products; (2) modify or replace the
including without limitation any
software products so that it becomes
damages resulting from loss of use, loss
non -infringing; or (3) if procurement of
of data, interruption of business
the right to use or modification or
activities or failure to realize savings
replacement can not be completed by
arising out of or in connection with the
COMPANY, terminate the license for
use of the software products. The
the infringing software product, and
license fees set forth in the Investment
upon termination, refund the license fees
Summary reflect and are set in reliance
9,
paid for the infringing software product
upon this allocation of risk and the
El
COMPANY AGREEMENT
TERMS AND CONDITIONS
exclusion of such damages as set forth in
this Software License Agreement.
7) No Intended Third Party
Beneficiaries. This agreement is entered
into solely for the benefit of COMPANY
and CLIENT. No third party shall be
deemed a beneficiary of this agreement,
and no third party shall have the right to
make any claim or assert any right under
this agreement.
8) Governing Law. This Software
License Agreement shall be governed by
and construed in accordance with the
laws of CLIENT's state of domicile.
9) Entire Agreement.
a) This Software License Agreement,
including Exhibit 1 (Parent Section H)
and the functional description of the
software products found in
COMPANY's written proposal to
CLIENT, represents the entire
agreement of CLIENT and COMPANY
with respect to the software products and
supersedes any prior agreements,
understandings and representations,
whether written, oral, expressed,
implied, or statutory. CLIENT hereby
acknowledges that in entering into this
agreement it did not rely on any
representations or warranties other than
those explicitly set forth in this Software
License Agreement and the functional
description of the software products
found in COMPANY's written proposal
to CLIENT.
b) If any term or provision of this
Software License Agreement or the
application thereof to any person or
circumstance shall, to any extent, be
invalid or unenforceable, the remainder
of this Software License Agreement or
the application of such term or provision
to persons or circumstances other than
those as to which it is held invalid or
unenforceable shall not be affected
thereby, and each term and provision of
this Software License Agreement shall
be valid and enforced to the fullest
extent permitted by law.
c) This Software License Agreement
may only be amended, modified or
changed by written instrument signed by
both parties.
d) CLIENT should return an executed
copy of this Agreement to COMPANY.
If the Agreement is not returned to
COMPANY within 90 days from the
issue date, then such Agreement is
subject to be voided and prices are
subject to change.
10) Cancellation or Termination. In
the event of cancellation or termination
of this Software License Agreement,
CLIENT will make payment to
COMPANY for all software products,
services and expenses delivered or
incurred prior to the termination or
cancellation of this Software License
Agreement.
11) Approval of Governing Body.
CLIENT represents and warrants to
COMPANY that this Software License
Agreement has been approved by its
governing body and is a binding
obligation upon CLIENT.
5
COMPANY AGREEMENT
TERMS AND CONDITIONS
Section D - Professional Services
Agreement
1) Services Provided. COMPANY shall
provide the following services to
CLIENT:
a) Installation as described in the
Investment Summary;
b) Conversion of CLIENT's existing data
as set forth in the Investment Summary.
CLIENT is responsible for reading and
complying with COMPANY's
Conversion Statement.
c) Training/Implementation as set forth
in the Investment Summary;
d) Consulting/Analysis as set forth in the
Investment Summary; and
If elected by CLIENT, COMPANY may
provide Verification Testing as
described in the Software License
Agreement # 3 a.
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. Hourly rate is currently
$120/hour, subject to change. CLIENT
agrees to pay COMPANY for the actual
amount of training provided. The
quantity in the Investment Summary
represents only an estimate of time
required to complete all phases of this
Agreement.
b) Upon the completion of each service
day, or group of days, COMPANY will
present a Daily Log. CLIENT will sign
the report indicating acceptance of the
service day and its subsequent billing, or
noting reasons for CLIENT's non-
acceptance of such. This acceptance is
final.
c) CLIENT is not charged for travel
time to and from the CLIENT's site.
(` =
Only time spent on -site is billed as
training time; excluding those cases in
which the CLIENT requires the
COMPANY trainer(s) to travel on the
weekend, in which case CLIENT will be
billed for weekend travel time at a rate
of $500 per weekend day.
d) If CLIENT travels to COMPANY
location for training, then CLIENT
agrees to pay all expenses related to
transportation of CLIENT's employees.
e) All requests for supporting
documentation shall be made within
thirty (30) calendar days of invoice
delivery. Such documentation will
consist of quoted internet rates within 7
days from the date the request is
received by the COMPANY and not
actual receipts. Such quotes will be
deemed acceptable documentation if
price is within 25% of actual amounts
charged to CLIENT, adjusted by unusual
or seasonal travel circumstances.
f) The rates for Verification Testing shall
be the same as the
Training/Implementation rates set forth
in the Investment Summary.
g) The rates listed in the Investment
Summary do not include any tax or other
governmental impositions including,
without limitation, sales, use or excise
tax. All applicable sales tax, use tax or
excise tax shall be paid by CLIENT and
shall be paid over to the proper
authorities by CLIENT or reimbursed by
CLIENT to COMPANY on demand in
the event that COMPANY is responsible
or demand is made on COMPANY for
the payment thereof. If tax-exempt,
CLIENT must provide COMPANY with
CLIENT's tax-exempt number or form.
h) Payment is due within thirty (30)
calendar days of invoice.
i) In the event of any disputed invoice,
CLIENT shall provide written notice of
such disputed invoice to Attention:
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COMPANY AGREEMENT
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COMPANY Controller at the address
listed on the cover of this Agreement.
Such written notice shall be provided to
COMPANY within fifteen (15) calendar
days of CLIENT's receipt of the invoice.
An additional fifteen (15) days is
allowed for the CLIENT to provide
written clarification and details for the
disputed invoice. COMPANY shall
provide a written response to CLIENT
that shall include either a justification of
the invoice or an explanation of an
adjustment to the invoice and an action
plan that will outline the reasonable
steps needed to be taken by COMPANY
and CLIENT to resolve any issues
presented in CLIENT's notification to
COMPANY. CLIENT may withhold
payment of only the amount actually in
dispute until COMPANY provides the
required written response, and full
payment shall be remitted to
COMPANY upon COMPANY's
completion of all material action steps
required to remedy the disputed matter.
Notwithstanding the foregoing sentence,
if COMPANY is unable to complete all
material action steps required to remedy
the disputed matter because CLIENT has
not completed the action steps required
of them, CLIENT shall remit full
payment of the invoice.
j) Any invoice not disputed as described
above shall be deemed accepted by the
CLIENT. If payment of any invoice that
is not disputed as described above is not
made within sixty (60) calendar days,
COMPANY reserves the right to
suspend delivery of all services under
the Investment Summary, the Software
License Agreement, this Professional
Services Agreement, the Maintenance
Agreement and, if applicable, the Third
Party Product Agreement.
3) Training Environment. If training
is being conducted at the CLIENT's site,
the CLIENT is responsible for providing
a productive environment to conduct
training. COMPANY is not responsible
for its inability to conduct training or for
inadequate training arising due to
interruptions and/or unavailability of
CLIENT personnel to be trained. Time
spent on -site by COMPANY that results
in non -productive training time beyond
COMPANY's control will be billed as
training time. COMPANY will make
reasonable efforts to schedule training
on dates requested by the CLIENT.
Trainers will be on -site approximately
noon Monday through noon Friday.
This allows appropriate travel time to
and from the CLIENT's site.
4) Additional Services. Services
utilized in excess of those set forth in the
Investment Summary and additional
related services not set forth in the
Investment Summary will be billed at
COMPANY's then current market rate
for the service as they are incurred.
5) Limitation of Liability. COMPANY
shall not be liable for inaccurate data in
COMPANY's application software
which is the result of conversion of
inaccurate data from the previous
system. The CLIENT shall not in any
event be entitled to, and COMPANY
shall not be liable for, indirect, special,
incidental, consequential or exemplary
damages of any nature. The professional
service fees set forth in the Investment
Summary reflect and are set in reliance
upon this allocation of risk and the
exclusion of such damages as set forth in
this Professional Services Agreement.
6) No Intended Third Party
Beneficiaries. This Professional
Services Agreement is entered into
solely for the benefit of COMPANY and
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COMPANY AGREEMENT
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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.
7) Governing Law. This Professional
Services Agreement shall be governed
by and construed in accordance with the
laws of CLIENT's state of domicile.
8) Cancellation or Termination. In the
event of cancellation or termination of
this Professional Services Agreement,
CLIENT will make payment to
COMPANY for all services and
expenses delivered or incurred prior to
the termination or cancellation of this
Professional Services Agreement.
9) Entire Agreement.
a) This Professional Services Agreement
represents the entire agreement of
CLIENT and COMPANY with respect
to the professional services and
supersedes any prior agreements,
understandings and representations,
whether written, oral, expressed,
implied, or statutory. CLIENT hereby
acknowledges that in entering into this
agreement it did not rely on any
representations or warranties other than
those explicitly set forth in this
Professional Services Agreement.
b) If any term or provision of this
Professional Service Agreement or the
application thereof to any person or
circumstance shall, to any extent, be
invalid or unenforceable, the remainder
of this Professional Services Agreement
or the application of such term or
provision to persons or circumstances
other than those as to which it is held
invalid or unenforceable shall not be
affected thereby, and each term and
provision of this Professional Services
Agreement shall be valid and enforced to
the fullest extent permitted by law.
c) This Professional Services Agreement
may only be amended, modified or
changed by written instrument signed by
both parties.
d) CLIENT should return an executed
copy of this Agreement to COMPANY.
If the Agreement is not returned to
COMPANY within 90 days from the
issue date, then such Agreement is
subject to be voided and prices are
subject to change.
10) Approval of Governing Body.
CLIENT represents and warrants to
COMPANY that this Professional
Services Agreement has been approved
by its governing body and is a binding
obligation upon CLIENT.
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COMPANY AGREEMENT
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Section E - Annual Software
Maintenance Agreement
1) Scope of Agreement. The CLIENT
agrees to purchase and COMPANY
agrees to provide services for the
software products listed in the
Investment Summary of this Agreement
in accordance with the following terms
and conditions. Both parties
acknowledge that this Annual Software
Maintenance Agreement covers both
Support for the software products listed
in the Investment Summary of this
Agreement and Licensing of updates of
such installed software products.
2) Term of Agreement. This Annual
Software Maintenance Agreement is
effective on the date executed by an
officer of COMPANY and shall have a
term beginning upon the first of the
month six months after the installation of
the COMPANY Software and ending
upon the last day of the month one year
following that date.
a) This Annual Software Maintenance
Agreement will automatically renew for
subsequent one-year terms unless either
party gives the other party at least thirty
days prior written notice of its intent not
to renew. Fees for subsequent years are
limited to an increase of not more than
ten percent (10%) each year.
b) If CLIENT has not elected to
participate in the COMPANY Annual
Software Maintenance Agreement, or
elects not to renew the Agreement, the
CLIENT shall acquire Software
maintenance in accordance to the Section
entitled "Support Terms for CLIENTS
Not Participating in the Annual Software
Maintenance Agreement ".
3) Payment.
a) CLIENT agrees to pay COMPANY
the amount identified in the Investment
Summary for licensing and support
services, as described below. The
licensing fee of the COMPANY
Software includes six month's
maintenance from the time the Software
is installed. The annual amount
identified in the Investment Summary
will become due the first of the month
following six months after the
installation of the COMPANY software.
This payment is due and payable in
accordance with Section General
Payment Terms or amended in any
attached addendum.
b) Additional Charges. Any maintenance
performed by COMPANY for the
CLIENT, which is not covered by this
Annual Software Maintenance
Agreement, will be charged at
COMPANY's then current market rates.
All materials supplied in connection
with such non -covered maintenance or
support plus expenses will be charged to
CLIENT.
c) Support and services will be
suspended whenever CLIENT's account
is thirty (30) calendar days overdue.
Support and services will be reinstated
when CLIENT's account is made
current.
4) Terms and Conditions for
Licensing of Updates of the Installed
Software Products.
a) CLIENT is hereby granted the non-
exclusive and nontransferable license
and right to use the additional versions
of the installed software products listed
in the Investment Summary of this
Agreement which COMPANY may
release during the term of this Annual
Software Maintenance Agreement.
COMPANY agrees to extend and
CLIENT agrees to accept a license
subject to the terms and conditions
contained herein for the installed
software products.
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b) The installed software products listed
are licensed for use only for the benefit
of CLIENT listed on the cover of this
Agreement. The software products are
not licensed to perform functions or
processing for subdivisions or entities
that were not considered by COMPANY
when COMPANY placed CLIENT in
the categories listed on the cover of this
Agreement.
c) As long as a current Annual Software
Maintenance Agreement is in place, this
License may be transferred to another
hardware system used for the benefit of
CLIENT. CLIENT agrees to notify
COMPANY prior to transferring the
licensed products to any other system.
The cost for new media or any required
technical assistance to accommodate the
transfer would be billable charges to the
CLIENT.
d) CLIENT agrees that the software
products are proprietary to COMPANY
and have been developed as a trade
secret at COMPANY's expense.
CLIENT agrees to keep the software
products confidential and use its best
efforts to prevent any misuse,
unauthorized use or unauthorized
disclosures by any party of any or all of
the software products or accompanying
documentation.
e) If CLIENT has made modifications to
the software products, COMPANY will
not support the modified software
products, unless modifications were
specifically authorized in writing by
COMPANY.
0 CLIENT may make copies of the
licensed software products for archive
purposes only. The CLIENT will repeat
any proprietary notice on the copy of the
software products. The documentation
accompanying the product may not be
copied except for internal use.
g) For as long as a current Annual
Software Maintenance Agreement is in
place, COMPANY shall promptly
correct any functions of the software
products which fail to substantially
comply with COMPANY's
documentation for the most current
version of the software products. If
CLIENT has made modifications to the
software products, COMPANY will not
make such corrections, unless
modifications were specifically
authorized in writing by COMPANY.
5) Terms and Conditions for Support.
a) COMPANY shall provide software
related CLIENT support during standard
support hours. Currently, regular
support hours are from 8:00am to
5:00pm Central Standard Time, Monday
thru Friday, excluding holidays.
Extended support hours are from 7:00am
to 8:00am CST and 5:00pm to 7:00pm
CST, Monday thru Friday, excluding
holidays. Incidents (problem calls) may
be initiated via COMPANY's toll free
support line, via e-mail to COMPANY's
support group or via COMPANY's
support web -site during regular support
hours. During extended support hours,
incidents must be initiated via e-mail to
COMPANY's support group or via
COMPANY's support web -site.
COMPANY reserves the right to modify
these support hours as COMPANY sees
fit in order to better serve its CLIENT.
Assistance and support requests which
require special assistance from
COMPANY's development group will
be taken and directed by support
personnel.
b) COMPANY will maintain staff that is
appropriately trained to be familiar with
the software products in order to render
assistance, should it be required.
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COMPANY AGREEMENT
TERMS AND CONDITIONS
c) COMPANY will provide CLIENT
with all updates that COMPANY may
make to the then current version of the
installed software products covered in
this Agreement.
d) CLIENT acknowledges that the
updates/enhancements may not be
compatible with CLIENT's particular
hardware configuration or operating
system. CLIENT acknowledges that
additional hardware and software may
be required at the CLIENT's expense in
order to utilize the
updates/enhancements.
e) COMPANY will make available
appropriately trained personnel to
provide CLIENT additional training,
program changes, analysis, consultation,
recovery of data, conversion, non -
coverage maintenance service, etc.,
billable at the current per diem rate plus
expenses. COMPANY employs many
CPAs but is not a board registered CPA
firm.
0 COMPANY shall provide CLIENT
with on-line support through the use of
communications modem and software.
6) Support Terms for CLIENTs Not
Participating in the Annual Software
Maintenance Agreement. The
Software License Agreement includes six
months free maintenance. If CLIENT
elects not to participate in the
COMPANY Annual Software
Maintenance Agreement, CLIENT shall
receive support on a Time and Materials
basis following six months after the
COMPANY Software is installed in
accordance with the following terms:
a) CLIENTs not on Software Support
Maintenance will receive the lowest
priority for Software Support.
b) CLIENTs not on Software Support
Maintenance will be required to
purchase new releases of the Software.
New Releases will include fixes,
enhancements and updates, such as, Tax
Tables, W/2 reporting formats, 1099
changes, etc.
c) CLIENTs not on Software Support
Maintenance will be charged $175 per
hour with a one -hour minimum for all
software support calls.
d) CLIENTs not on Software Support
Maintenance will not be granted access
to COMPANY's software support web -
site.
e) CLIENTs not on Software Support
Maintenance are subject to higher rates
for training and continuing education
performed by COMPANY employees.
This is due to the fact that the CLIENT
may not be utilizing the most current
version of our software.
f) COMPANY will not guarantee a
program fix to a documented bug for
software versions that are not the
currently released version.
g) If a CLIENT decides to discontinue
Software Support Maintenance and later
chooses to reinstate Software Support
Maintenance, the CLIENT will be
required to pay the portion of annual
software support maintenance fees for
the Enhancement and Software Updates
(27%), dating back to the date when the
CLIENT discontinued Software Support
Maintenance. Once again, COMPANY
feels any CLIENT not on Software
Support Maintenance will not be
satisfied with the level of support they
will receive, which in turn, makes a
dissatisfied CLIENT. COMPANY
prides itself on customer satisfaction,
which is why we strongly encourage
every CLIENT to purchase Software
Support Maintenance.
7) Additional Services. The Services
listed below are not included in the
COMPANY Software Maintenance
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COMPANY AGREEMENT
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Agreement. These services shall be
provided at COMPANY's discretion and
will be billed on a Time and Materials
basis at COMPANY's current rates.
a) Changes to print programs.
b) Software modifications.
c) Software Training.
d) Responding to problems caused by
bad data.
e) Responding to problems caused by
hardware.
f) Responding to problems caused by
operator error.
g) Responding to problems caused by
software that is not COMPANY
software.
h) Responding to problems resulting
from misuse, accidents, CLIENT
neglect, fire, or any other cause not
within COMPANY's reasonable control.
i) Changes made to the COMPANY
Software by someone other than
COMPANY personnel.
j) Any other services performed by
COMPANY not otherwise specifically
provided for in this Agreement, including
but not limited to, bank reconciliation,
reconciling out of balance reports,
balancing segments of the system, etc.
8) Limitations and Exclusions. The
support and services of this Maintenance
Agreement do not include the following:
a) Support service does not include the
installation of the software products,
onsite support, application design, and
other consulting services, support of an
operating system or hardware, or any
support requested outside of standard
support hours.
b) CLIENT shall be responsible for
implementing at its expense, all changes
to the current version. CLIENT
understands that changes furnished by
COMPANY for the current version are
for implementation in the current
installed software products version, as it
exists without customization or CLIENT
alteration.
9) CLIENT Responsibilities.
a) CLIENT shall provide, at no charge to
COMPANY, full and free access to the
programs covered hereunder: working
space; adequate facilities within a
reasonable distance from the equipment;
and use of machines, attachments,
features, or other equipment necessary to
provide the specified support and
maintenance service. Such environment
includes, but is not limited to; use of the
appropriate operating system at the
version and release levels specified by
COMPANY and additionally specifies
that the environment for any
COMPANY software application
requires the CLIENT to have e-mail and
Internet access. CLIENT shall provide
telephone lines, communications
software specified by COMPANY, and
all equipment necessary to use
COMPANY's on-line support. CLIENT
will be responsible for all additional
costs incurred to the extent such
hardware and software does not conform
to COMPANY's specifications. The
acquisitions of necessary hardware and
software meeting the requirements then
in effect shall be sole responsibility of
the CLIENT.
b) CLIENT shall maintain an IP or VPN
connection through pcAnywhere, Citrix
or Microsoft Terminal Services.
COMPANY, at its option, shall use the
connection to assist with problem
diagnosis and resolution.
c) CLIENT must maintain an active e-
mail address capable of receiving a 5
MB attachment.- This e-mail account
must be accessible from a PC connected
to the server hosting the COMPANY
software applications. Subject to
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COMPANY AGREEMENT
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reasonable security concerns and
CLIENT's security protocols, CLIENT
agrees to cooperate with COMPANY's
efforts to access CLIENT's software
applications for problem diagnosis and
resolution. Such consent and
coordination shall not be unreasonably
withheld.
d) CLIENT will be responsible for
opening firewall ports to enable access
to COMPANY's FTP server for program
updates via Live Update.
10) Non -Assignability. The CLIENT
shall not have the right to assign or
transfer its rights hereunder to any party.
11) Force Majeure. COMPANY shall
not be responsible for delays in servicing
the products covered by this Annual
Software Maintenance Agreement
caused by strikes, lockouts, riots,
epidemic, war, government regulations,
fire, power failure, acts of God, or other
causes beyond its control.
12) Limitation of Liability. The
CLIENT shall not in any event be
entitled to, and COMPANY shall not be
liable for, indirect, special, incidental,
consequential or exemplary damages of
any nature.
13) Governing Law. This Annual
Software Maintenance Agreement shall
be governed by and construed in
accordance with the laws of CLIENT's
state of domicile.
14) Entire Agreement.
a) This Annual Software Maintenance
Agreement represents the entire
agreement of CLIENT and COMPANY
with respect to the maintenance of the
software products and supersedes any
prior agreements, understandings and
representations, whether written, oral,
expressed, implied, or statutory.
CLIENT hereby acknowledges that in
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entering into this agreement it did not
rely on any representations or warranties
other than those explicitly set forth in
this Annual Software Maintenance
Agreement.
b) If any term or provision of this
Agreement or the application thereof to
any person or circumstance shall, to any
extent, be invalid or unenforceable, the
remainder of this Annual Software
Maintenance Agreement or the
application of such term or provision to
persons or circumstances other than
those as to which it is held invalid or
unenforceable shall not be affected
thereby, and each term and provision of
this Annual Software Maintenance
Agreement shall be valid and enforced to
the fullest extent permitted by law.
c) This Annual Software Maintenance
Agreement may only be amended,
modified or changed by written
instrument signed by both parties.
d) CLIENT should return an executed
copy of this Agreement to COMPANY.
If the Agreement is not returned to
COMPANY within 90 days from the
issue date, then such Agreement is
subject to be voided and prices are
subject to change.
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COMPANY AGREEMENT
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Section F - Hardware and System
Software Agreement
1) Agreement to License or Sell
Hardware. For the price set forth in the
Investment Summary (Hardware &
System Software), COMPANY agrees to
license or sell and deliver to CLIENT,
and CLIENT agrees to accept from
COMPANY the hardware and system
software products set forth in the
Investment Summary.
2) License of Hardware. Upon
CLIENT's payment for the hardware
listed in the Investment Summary, for
the license fees set forth in the
Investment Summary, COMPANY shall
grant to CLIENT and CLIENT shall
accept from COMPANY a non-
exclusive, nontransferable, non -
assignable license to the hardware and
system software products and
accompanying documentation and
related materials for internal business
purposes of CLIENT, subject to the
conditions and limitations in this section.
3) Price. CLIENT agrees to pay
COMPANY and COMPANY agrees to
accept from CLIENT as payment in full
for the hardware and system software
products, the price set forth in the
Investment Summary.
a) In the event of any disputed invoice,
CLIENT shall provide written notice of
such disputed invoice to Attention:
COMPANY Controller at the address
listed on the cover of this Agreement.
Such written notice shall be provided to
COMPANY within fifteen (15) calendar
days of CLIENT's receipt of the invoice.
An additional fifteen (15) days is
allowed for the CLIENT to provide
written clarification and details for the
disputed invoice. COMPANY shall
provide a written response to CLIENT
that shall include either a justification of
the invoice or an explanation of an
adjustment to the invoice and an action
plan that will outline the reasonable
steps needed to be taken by COMPANY
and CLIENT to resolve any issues
presented in CLIENT's notification to
COMPANY. CLIENT may withhold
payment of only the amount actually in
dispute until COMPANY provides the
required written response, and full
payment shall be remitted to
COMPANY upon COMPANY's
completion of all material action steps
required to remedy the disputed matter.
Notwithstanding the foregoing sentence,
if COMPANY is unable to complete all
material action steps required to remedy
the disputed matter because CLIENT has
not completed the action steps required
of them, CLIENT shall remit full
payment of the invoice.
b) Any invoice not disputed as described
above shall be deemed accepted by the
CLIENT. If payment of any invoice that
is not disputed as described above is not
made within sixty (60) calendar days,
COMPANY reserves the right to
suspend delivery of all services under
the Investment Summary, the Software
License Agreement, the Professional
Services Agreement, the Maintenance
Agreement and this Hardware and
System Software Agreement.
4) Costs and Taxes.
a) Unless otherwise indicated in the
Investment Summary, the price includes
costs for shipment of and insurance
while in transit for the hardware and
system software products from the
supplier's place of manufacture to
CLIENT's site.
b) The price listed in the Investment
Summary does not include any tax or
other governmental impositions
including, without limitation, sales, use
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COMPANY AGREEMENT
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or excise tax. All applicable sales tax,
use tax or excise tax shall be paid by
CLIENT and shall be paid over to the
proper authorities by CLIENT or
reimbursed by CLIENT to COMPANY
on demand in the event that COMPANY
is responsible or demand is made on
COMPANY for the payment thereof. If
tax-exempt, CLIENT must provide
COMPANY with CLIENT's tax-exempt
number or form.
5) F.O.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
COMPANY shall not be liable for
failure to meet the agreed upon schedule
if, and to the extent, said failure is due to
causes beyond the control and without
the fault of COMPANY.
7) CLIENT Delays. If any act or failure
to act by the CLIENT delays
COMPANY's performance, COMPANY
shall be excused from performance for an
amount of time commensurate with the
delay caused by CLIENT. CLIENT
acknowledges that its delay may excuse
COMPANY from performance for an
amount of time greater than the delay
caused by CLIENT. Such delays by
CLIENT that may cause COMPANY to
delay performance include, but are not
limited to failure to have prepared any
data in the form and format requested by
COMPANY, on or before the date
specified by COMPANY or to have
verified such data for accuracy,
submission of erroneous data to
COMPANY or CLIENT's failure to have
completely prepared the Hardware's
installation site prior to the Hardware's
actual delivery including, but not limited
to, failure to have all electrical work and
cable installation completed.
8) Installation and Verification. If
itemized in the Investment Summary, the
price includes installation of the
hardware and system software products.
Upon the completion of installation,
CLIENT shall obtain from the installer a
certification of completion, or similar
document, which certification or similar
document shall constitute CLIENT's
acceptance of the hardware and system
software products. Such acceptance shall
be final and conclusive except for latent
defects, fraud, and such gross mistakes
as amount to fraud and rights and
remedies available to CLIENT under the
paragraph hereof entitled Warranties.
9) Site Requirements. CLIENT shall
prepare the installation site prior to the
delivery of the hardware and system
software. CLIENT is solely responsible
for and will furnish all necessary labor
and material to install all associated
electrical lines, CRT cables, and
telephone lines for communication
moderns. 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,
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COMPANY AGREEMENT
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INCLUDING WITHOUT
LIMITATION THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE AND
SYSTEM INTEGRATION.
11) Maintenance. There is no hardware
maintenance provided pursuant to this
Agreement. Hardware warranty and/or
maintenance are typically provided by the
manufacturer or a Third Party. In
situations where COMPANY and the
CLIENT agree that COMPANY will
provide hardware maintenance, such
hardware maintenance shall be governed
by the terms of COMPANY's Annual
Hardware Maintenance agreement.
12) Limitation of Liability. CLIENT
expressly assumes sole responsibility for
the selection and use of the hardware
and system software. In no event shall
COMPANY be liable for special,
indirect, incidental, consequential or
exemplary damages, including without
limitation any damages resulting from
loss of use, loss of data, interruption of
business activities or failure to realize
savings arising out of or in connection
with the use of the hardware and system
software products. The prices set forth
in the Investment Summary reflect and
are set in reliance upon this allocation of
risk and the exclusion of such damages
as set forth in this Hardware and System
Software Agreement.
13) Governing Law. This Hardware and
System Software Agreement shall be
governed by and construed in
accordance with the laws of CLIENT's
state of domicile.
14) Cancellation or Termination. In
the event of cancellation or termination
of this Hardware and System Software
Agreement, CLIENT will make payment
to COMPANY for all products and
related services and expenses delivered
or incurred prior to the termination or
cancellation of this Hardware and
System Software Agreement.
15) Entire Agreement.
a) This Hardware and System Software
Agreement represents the entire
agreement of CLIENT and COMPANY
with respect to the hardware and system
software products and supersedes any
prior agreements, understandings and
representations, whether written, oral,
expressed, implied, or statutory.
CLIENT hereby acknowledges that in
entering into this agreement it did not
rely on any representations or warranties
other than those explicitly set forth in
this Hardware and System Software
Agreement.
b) If any term or provision of this
Hardware and System Software
Agreement or the application thereof to
any person or circumstance shall, to any
extent, be invalid or unenforceable, the
remainder of this Hardware and System
Software Agreement or the application
of such term or provision to persons or
circumstances other than those as to
which it is held invalid or unenforceable
shall not be affected thereby, and each
term and provision of this Hardware and
System Software Agreement shall be
valid and enforced to the fullest extent
permitted by law.
c) This Hardware and System Software
Agreement may only be amended,
modified or changed by written
instrument signed by both parties.
d) CLIENT should return an executed
copy of this Agreement to COMPANY.
If the Agreement is not returned to
COMPANY within 90 days from the
issue date, then such Agreement is
subject to be voided and prices are
subject to change.
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16) Approval of Governing Body.
CLIENT represents and warrants to
COMPANY that this Hardware and
System Software Agreement has been
approved by its governing body and is a
binding obligation upon CLIENT.
4
IN
COMPANY AGREEMENT
TERMS AND CONDITIONS
Section G - Annual Hardware
Maintenance Agreement
1) Scope of Agreement. For the prices
set forth in the Investment Summary,
CLIENT requests to cover and
COMPANY agrees to cover the
equipment specified in the Investment
Summary of this agreement in
accordance with the following terms and
conditions. COMPANY 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.
COMPANY guarantees this fee for the
term of the Annual Hardware
Maintenance Agreement. Fees for
subsequent years are limited to an
increase of not more than ten percent
(10%) each year.
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 Annual
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
4) Equipment Maintenance Program
Terms. COMPANY 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,
COMPANY will repair the defective
equipment and provide the CLIENT
with "like or near like" equipment while
the defective equipment is being
repaired.
b) CLIENT shall notify COMPANY of
equipment failure. Upon notification,
COMPANY will ship via over -night
service to the CLIENT the appropriate
loaner equipment. The CLIENT shall
package the defective equipment in its
original container and ship the
equipment to COMPANY.
c) Once the equipment is repaired, it
will be shipped to the CLIENT. Upon
receipt of the repaired equipment the
CLIENT shall ship the loaner equipment
back to COMPANY. The loaner
equipment should be shipped back to
COMPANY within two days of
receiving the repaired equipment. The
CLIENT agrees to pay daily rental fees
to COMPANY if the loaner equipment is
not shipped back to COMPANY within
the time frame specified.
d) The CLIENT is responsible for
shipping cost related to shipping
equipment to COMPANY. COMPANY
is responsible for shipping cost related to
shipping equipment to the CLIENT.
5) Definitions. The following
definitions apply to the terms of this
Annual Hardware Maintenance
Agreement:
a) Loaner Equipment. Equipment
loaned to the CLIENT by COMPANY
for use while the CLIENT's equipment is
being repaired.
b) Like or Near -Like Equipment.
Equipment compatible with the
CLIENT's computer system and capable
of performing the tasks performed by the
equipment being repaired.
6) Limitation of Liability. The
CLIENT shall not in any event be
entitled to, and COMPANY shall not be
liable for, indirect, special, incidental,
COMPANY AGREEMENT
TERMS AND CONDITIONS
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) This Annual Hardware Maintenance
Agreement represents the entire
agreement of CLIENT and COMPANY
with respect to the maintenance of the
hardware and system software products
and supersedes any prior agreements,
understandings and representations,
whether written, oral, expressed,
implied, or statutory. CLIENT hereby
acknowledges that in entering into this
agreement it did not rely on any
representations or warranties other than
those explicitly set forth in this Annual
Hardware Maintenance Agreement.
b) If any term or provision of this
Agreement or the application thereof to
any person or circumstance shall, to any
extent, be invalid or unenforceable, the
remainder of this Annual Hardware
Maintenance Agreement or the
application of such term or provision to
persons or circumstances other than
those as to which it is held invalid or
unenforceable shall not be affected
thereby, and each term and provision of
this Annual Hardware Maintenance
Agreement shall be valid and enforced to
the fullest extent permitted by law.
c) This Annual Hardware Maintenance
Agreement may only be amended,
modified or changed by written
instrument signed by both parties.
d) CLIENT should return an executed
copy of this Agreement to COMPANY.
If the Agreement is not returned to
COMPANY within 90 days from the
issue date, then such Agreement is
subject to be voided and prices are
subject to change.
2
c
tylerworks.
SECTION H - EXHIBIT 1 — DELIVERY ATTESTMENT
The Delivery Attestment test detailed below will be conducted following the INCODE software
install and prior to the implementation. The test is performed using the INCODE Sample Database.
This database contains general information applicable to all customers. Given this, the tests will not
validate site specific functionality. Rather, the tests will affirm that the INCODE system is installed
and performs base line functions. Customer specific functionality will be reviewed during the
implementation phase when site -specific data will be built and applied against desired functionality.
Each suite has a space where clients will be asked to initial certifying the software has been
installed and accepted. If a section does not apply to you, then please mark it as N/A. Please
fill out the Client and Contact Name, initial the appropriate space and fax this document to
(806) 797-4849, attn: Implementation.
Client Name
Contact Name
Date
Financial Suite
1. View General Ledger Account Manager (Initial)
2. View Budget Maintenance
3. View AP Vendor Manager
4. Find PO's in PO Inquiry
5. View Inventory Item Maintenance
6. View Fixed Assets Maintenance
7. View Deduction codes
8. View Pay Type codes
9. View Employee Manager
10. View HR Manager
CIS Suite
l . View Fee Schedule with Rate Tables (Initial)
2. View Account Manager
3. View Contact and Property Consoles
4. View Bill Maintenance
5. View License Manager
6. View AR Customer Manager
7. View Permits Project Manager
Court Suite
1. View Citation Maintenance (Initial)
2. View Fee Maintenance
3. View Offense Code Maintenance
tylerworks.
Section I - The Data Conversion Process
Purpose
One of the most difficult aspects of software transition revolves around data conversion. This
process takes place in one of two ways:
1. The manual method - In the manual mode the customer enters data from the existing
system into the new InCode system.
2. The automated method - In the automated mode a software program is written or coded in
order to facilitate moving information from the existing system to the new InCode system.
This document is provided to aid the customer in understanding the automated conversion process
and provide clear direction as to the responsibility and the scope of the process.
Who should read this document?
The obvious answer to this question is the individual at the customer site that is most responsible
for the transition. Specifically it should be:
1. The individual responsible for extracting and providing data from the old system to InCode.
2. Any individuals responsible at a department level.
3. Any individual that would benefit from understanding the conversion process
The Conversion Process
The process itself has a predefined set of steps that must take place for a successful conversion.
1. Initial data extraction - The customer must perform the preliminary extraction and
transmission of data.
2. Data Evaluation InCode will then be responsible for evaluating the information that has
been transmitted. Upon a successful evaluation the customer will be contacted for further
scheduling.
3. Conversion scheduling - Once a schedule has been decided upon, InCode will proceed in
development of the conversion programs. During the development step, the customer will
be responsible for providing knowledge and insight into the information from their current
system
4. On -Site Conversion - Upon InCode's arrival at the customer's site for the conversion, the
customer will be responsible for a final extraction of the data. In most situations the
customer will not have to transmit the final extraction to InCode. The InCode _trainer on site
will assist the customer in preliminary InCode application setup that is required for the
conversion as well as execute the conversion programs and assist in the verification of the
converted information's integrity.
Even though the InCode trainers possess a great deal of knowledge in the area of conversion, it is
ultimately the customer's responsibility to validate any converted data. The sections that follow
clearly outline and describe each of the above steps.
Understanding the Conversion Process 1 of 4
tylerworks.
Data Extraction and Transmission of Data
As stated in the contract, the customer must supply data in ASCII file format with unpacked data
fields. This terminology is sometimes considered confusing. The ASCII (pronounced as AS -key) is
an abbreviation that represents the American Standard Code for Information Interchange. This
standard was established in 1967 and still represents one of the most important standards in the
computer industry. Since that time, some vendors have deviated from this standard. An example
would be IBM's has a proprietary standard format abbreviated EBCDIC (pronounced EBB-see-dik).
This is their current standard on the System36 and AS400. Vendors also use compression
techniques in their data structures to pack numeric fields and dates. Since these techniques are not
standard and vary from vendor to vendor, we are unable to process this information. In the
simplest of terms the customer's data that is transmitted to InCode should be legible in a standard
text processing program such as Windows textpad or wordpad. The characters that you view on
screen should be the same characters that are on your computer keyboard.
File Descriptions and layout
The contract further states that the customer must supply sufficient file descriptions and layout
information for the data. Sometimes file descriptions will be referenced as data definitions.
Normally data files have one row after another. Each row represents a record or grouping of
information. As an example, a vendor file would normally have a row for each vendor in the
system. The rows then have to be broken down further into columns or fields. An example of a
field in the vendor file could be vendor name. The file description provides the information needed
to know exactly what position each field starts and stops in each row. In all cases, file descriptions
are absolutely necessary for any type of conversion.
Media Type
Also outlined in the contract is the media type that the information can be transmitted to InCode.
Unless the customer's existing system has a unix operating system, the most desirable media to
transmit the data would be a cd. In situations where a writable cd is not available the customer can
,submit the information on a zip disk or 4mm tape. If a 4mm tape is used then the customer should
transfer the information to the tape using the standard Windows backup software. The customer
may also submit the data via email when the customer has a compression utility such as winzip
and a fast and reliable internet connection. When the customer's existing system has a unix
operating system, the customer may use any of the methods mentioned above with the additional
transmittal method of a 4mm tape with the maximum capacity of 4gb or a 1/4 inch tape with the
maximum capacity of igb. The customer should include the Data Transmission Form with the
media. If the customer is using email to transmit the data please include the information from the
Data Transmittal Form in the email as text or an attachment. In situation where none of the above
options are available to the customer, arrangements should be made with InCode as to viable
alternatives. These alternatives may involve additional fees.
There are certain vendors that InCode has had considerable conversion experience and has
developed processes to extract the information from their proprietary data files. Other vendors
store their data in Microsoft Access or Microsoft SQL Server database. It is possible in these
situations that the customer can provide their existing data files in their current state without data
extraction. In this scenario the customer would only be responsible for providing a backup of their
current data.
The first data extraction is for the sole purpose of developing the conversion software. This
extraction should contain all the tables or files that are to be converted along with the appropriate
record layouts. An incomplete extraction can produce time delays and undesirable results during
the actual conversion.
Understanding the Conversion Process 2 of 4
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Final Data Extraction
The final data extraction will be performed on the day of or a day very close to the final
conversion. This extraction will be coordinated with InCode's conversion personnel and
implementation coordinator.
Data Extraction Assistance
In almost all instances the customer owns its data, but the current software provider's file
descriptions will be considered proprietary information. There will be scenarios where the software
provider will not provide file descriptions or will provide the descriptions for a fee. Any fees
required by the vendor are the responsibility of the customer and are not included in the contract.
In many situations the data will have proprietary fields with no easy solution for extraction.
InCode's years of experience with data conversions has lead to many innovative techniques for
data extraction. When the customer has exhausted their available options, InCode can assist with
the data extraction for additional fees. The customer will have the responsibility of contacting their
sales representative for a quote for additional services. Upon receipt of a purchase order from the
customer, InCode will proceed with this assistance.
Conversion Scheduling
Once InCode has received the data from the customer a three stage evaluation process will be
implemented. Media will be evaluated as to its readability. Each data file transmitted will be
reviewed as to its format, file description, and estimated complexity. When these two stages have
been successfully completed, InCode's implementation coordinator will schedule with the customer
a time for the data conversion, conversion assistance, and training. The third stage of the
evaluation is more detailed and will follow in approximately 3 weeks. During this stage the data
will be evaluated for its completeness, validity, and mandatory fields needed in the conversion. If
problems arise during this process, InCode will communicate to the customer the problems. The
customer will be responsible for resolving the problems in a timely a manner as possible so that
the schedule is not affected. If no problems arise then the customer can assume that InCode is on
schedule.
Timing is an important element during a data conversion. Scheduling of the conversion will revolve
around the most advantageous cutoff dates. For example, if a customer bills their utility customers
at the end of each month, the best time to do the conversion would be during the last two weeks
of the month. Financial conversions will be easier to validate if performed after a period has been
closed. All of these elements will be discussed by the implementation coordinator with the
customer during scheduling.
Conversion Program Development
After InCode receives and validates the customer's data, the development of the conversion
program will begin. During the development process, questions about the customer's current data
or application may be raised. The customer is responsible for providing contact information for staff
member(s) that are capable of responding to questions for each module being converted.
It is important for the customer to understand that InCode has a minimal amount of experience
with the customer's current application. Questions raised by the InCode will be the result of
analyzing data. There are a significant number of times when the data being analyzed does not
correspond with the information that the customer views on the screen in their current application.
Providing staff members that have an in depth knowledge of the customer's current application is a
key element of a successful conversion.
Understanding the Conversion Process 3 of 4
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Part of the development process will be testing the program with the data provided in the first
extraction. This testing will take place at InCode's facilities. Any potential problem areas will be
communicated to the customer.
Conversion Assistance
As part of the contract, an InCode trainer will be at the customer location during the actual
conversion. The trainer will provide conversion assistance in the areas of preliminary setup,
conversion program execution and data validation. Even though the primary focus of the trainer
is a successful completion of the conversion process, the trainer will be providing a limited amount
of training in certain areas. In a majority of cases, the trainer responsible for the conversion
assistance will also be responsible for the training that will occur either before or after the
conversion.
It is important to note that the trainer will not be the programmer responsible for the creating or
modifying conversion program. The trainer will be responsible for conveying to the programmer
discovery of customer specific information before the final conversion and any mistakes found after
the conversion. The customer will need to facilitate the trainer by providing a comfortable place to
work, access to facilities before and after normal work hours and telephone communications.
Data Validation
The final step in the conversion process is the data validation. Much attention will be given to data
integrity during the testing phase by the program developers. The conversion assistant will also
spend time testing the integrity of the information. Balances and the output of processes will be
tested after the conversion. A visual inspection of different modules will be performed by choosing
different records on a random base. But Data validation is ultimately the responsibility of the
1-1
customer.
Conclusion
After over 20 years and several hundred conversion experiences, InCode has determined that
there are several key factors in a successful conversion. The customer needs to have a realistic
expectation of what is going to happen. The customer must understand that there are no pleasant
conversions; therefore a successful conversion is one that provides the least amount of
displacement and discomfort. More than likely, the customer will have to change their schedules
and prepare for a heavier work load during the conversion. The customer has to realize that the
data on the system being converted is exactly how the data will be on the new system. The
conversion process does not clean up or correct any information during the conversion process.
The old adage "garbage in, garbage out" is very relevant during the conversion process. One
example would be a general ledger conversion where the current system's ledger is out of balance.
After the conversion, the InCode general ledger will be out of balance. Conversions maybe
somewhat mystical but the process is not magical. And finally, to have a successful conversion,
there must be a team approach by all those involved.
Understanding the Conversion Process 4 of 4
Section J - SOFTWARE SOURCE COD_ E ESCROW
AGREEMENT
TERMS AND CONDITIONS
ESCROW AGREEMENT. INCODE agrees to name THE CITY OF LUBBOCK, hereinafter CUSTOMER, as a
beneficiary in accordance with the provisions of the Software Escrow Service Agreement INCODE maintains with an
independent escrow service.
PRICE. CUSTOMER agrees to pay an initial annual fee of $750.00, due upon execution of this agreement. Future
annual payments will be invoiced in the month prior to the renewal date and will be due in full for this agreement to
continue in effect.
SOFTWARE SOURCE CODE COVERED. This Agreement applies to all INCODE Software for which CUSTOMER
has paid the full agreed upon price of the INCODE Software license. If CUSTOMER acquires additional INCODE
Software in the future, such software shall also be covered by this Agreement. If CUSTOMER fails to pay the Escrow fee
when due, INCODE shall have the right in its sole discretion to suspend its performance or terminate this Agreement.
TERM. This Agreement shall become effective on the same date as the System Agreement becomes effective and shall
have a term beginning upon the first of the month following the installation of the INCODE Software and ending upon the
last day of the month one year following that date.
A. This Agreement will automatically renew for subsequent one year terms unless either party gives the other party at
least thirty days prior written notice of its intent not to renew. Fees for subsequent years are subject to change.
PROVISIONS. As a minimum requirement, rNCODE agrees to provide the following service to CUSTOMER through
an escrow agreement:
A. INCODE will maintain a software escrow service agreement with an independent escrow service provider.
B. INCODE will deposit a current copy of source code for all licensed INCODE software applications and will
update the deposit when a major revision of the software is released.
C. If INCODE chooses to change the provider of the escrow service, INCODE will notify CUSTOMER of the
name and address of the new escrow service provider.
D. The provisions included in the escrow service agreement will include provisions for the beneficiary to receive
access to the INCODE source code when the escrow service provider has received written instruction directly
from INCODE, INCODE's trustee in bankruptcy, or a court of competent jurisdiction and payment to the
escrow service provider of the deposit copying and delivery fees, then the escrow service provider will release a
copy of the deposit materials to CUSTOMER.
na.