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SOFTWARE AS A SERVICE AGREEMENT
This Software as a Service Agreeme
nt is made between Tyler Technologies, Inc. (hereinafter “Tyler,” “Consultant,” “we,” “us,” or “our”), and the Town of Colma (hereinafter “Town,” “Client,” “Customer,” “you,” or “your”), and the parties to this Agreement may hereinafter be individually referred to as “party,” or collectively as “’parties”.
WHEREAS, Client selected Tyler to provide certain products and 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 Client agree as follows:
SECTION A – DEFINITIONS
• “Agreement” means this Software as a Service Agreement. • “Business Travel Policy” means our business travel policy. Our current Business Travel Policy is available here: https://www.tylertech.com/portals/0/terms/Tyler-Business-Travel-Policy.pdf. • “Client” or “Town” means the Town of Colma, a California municipality. • “Data” means your data necessary to use the Tyler Software. • “Data Storage Capacity” means the contracted amount of storage capacity for your Data, if any, identified in the Investment Summary.
• “Defect” means a failure of the Tyler Software to substantially conform to the functional descriptions set forth in our written proposal to you (or the Documentation in the absence of a written proposal), or their functional equivalent. Future functionality may be updated, modified, or otherwise enhanced through our maintenance and support services, and the governing functional descriptions for such future functionality will be set forth in our then- current Documentation.
• “Defined Users” means the number of users, if any, that are identified in the Investment Summary. If Exhibit A contains Enterprise Permitting & Licensing labeled software, defined users mean the maximum number of named users that are authorized to use the Enterprise Permitting & Licensing labeled modules as indicated in the Investment Summary. • “Developer” means a third party who owns the intellectual property rights to a Third-Party Product.
• “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.
ATTACHMENT B
UPDATED - FINAL
CONTRACT WITH
REDLINES
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• “Effective Date” means the date by which both your and our authorized representatives have signed the Agreement. Notwithstanding the foregoing, if these terms are linked from an Order Form, the Effective Date is the date your authorized representative signed the Order Form. • “Force Majeure” means an event beyond the reasonable control of you or us, including, without limitation, governmental action, war, riot or civil commotion, fire, natural disaster, or any other cause that could not with reasonable diligence be foreseen or prevented by you or us. • “Investment Summary” means the agreed upon cost proposal for the products and services attached as Exhibit A.
• “Order Form” means an ordering document that includes a quote or investment summary and specifies the items to be provided by Tyler to Client, including any addenda and supplements thereto.
• “Professional Services” means those services provided by Tyler or a third party related to the scope of this Agreement and identified in the Investment Summary. • “SaaS Fees” means the fees for the SaaS Services identified in the Investment Summary. • “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. • “SLA” means the service level agreement. A copy of our current SLA is attached hereto as Exhibit C.
• “Support Call Process” means the support call process applicable to all our customers who have a right to use the Tyler Software. Our current Support Call Process is available here:
https://www.tylertech.com/portals/0/terms/Tyler-Support-Call-Process.pdf. (attached as Exhibit C, Schedule 1, phone numbers are subject to change. Client must check the website for most current contact information).
• “Suspension” means an indefinite suspension of SaaS Services and Professional Services otherwise required for the performance of this agreement including, but not limited to, turning off access to the SaaS environment.
• “Third-Party Hardware” means the third-party hardware, if any, identified in the Investment Summary.
• “Third-Party Products” means the Third-Party Software and Third-Party Hardware. • “Third-Party SaaS Services” means software as a service provided by a third party, if any, identified in the Investment Summary.
• “Third-Party Services” means the third-party services, if any, identified in the Investment Summary.
• “Third-Party Software” means the third-party software, if any, identified in the Investment Summary or included with the Tyler Software.
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• “Third-Party Terms” means the end user license agreement(s) or other terms, if any, for the Third-Party Products or other parties’ products or services, as applicable, and attached or indicated at Exhibit D.
• “Tyler” or “Consultant” means Tyler Technologies, Inc., a Delaware corporation. • “Tyler Software” means our proprietary software, including any integrations, custom modifications, and/or other related interfaces identified in the Investment Summary and licensed by us to you through this Agreement.
• “we,” “us,” “our” and similar terms mean Tyler.
• “you” and similar terms mean Client.
SECTION B – SAAS SERVICES
1. Rights Granted. We grant to you the non-exclusive, non-assignable limited right to use the SaaS Services solely for your governmental purposes, subject to any limits for Defined Users or Data Storage Capacity. You may add additional users or additional data storage capacity on the terms set forth in this Agreement. In the event you regularly and/or meaningfully exceed the Defined Users or Data Storage Capacity, we reserve the right to charge you additional fees commensurate with the overage(s). You acknowledge that we have no obligation to ship copies of the Tyler Software as part of the SaaS Services. Your right to use the SaaS Services applies to releases provided as part of our Maintenance and Support Services as further detailed in this Agreement.
2. Ownership.
2.1. We retain all ownership and intellectual property rights to the SaaS Services, the Tyler Software, and anything developed by us under this Agreement. You do not acquire under this Agreement any license to use the Tyler Software in excess of the scope and/or duration of the SaaS Services.
2.2. The Documentation is licensed to you and may be used and copied by your employees for internal, non-commercial reference purposes only.
3. Data.
3.1. You retain all ownership and intellectual property rights to the Data. You expressly recognize that except to the extent necessary to fulfill our obligations contained in this Agreement, we do not create or endorse any Data used in connection with the SaaS Services.
3.2. You expressly grant to us a limited, non-exclusive license to access, copy, transmit, download, display, and reproduce your Data to provide services pursuant to this Agreement. Additionally, you agree that Tyler may use deidentified Data for Client or third-party demonstrative or training purposes.
3.3. Our access to and use of your Data necessary to use the Tyler Software or SaaS Services will comply with applicable provisions of our Privacy Statement (available at https://www.tylertech.com/privacy) and applicable law.
3.4. Data Breach Notification. Tyler will provide notice of a breach of Client Data in accordance with applicable state and federal data breach notification laws. 25977.00300\44859412.1
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4. Restrictions.
4.1. You may not:
4.1.1. 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; modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the SaaS Services;
4.1.2. access or use the SaaS Services to build or support, and/or assist a third party in building or supporting, products or services competitive to us; or
4.1.3. 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.
4.1.4. Notwithstanding anything to the contrary in this Section 4.1, you may disclose, with our written consent, not to be unreasonably withheld, the Tyler Software, SaaS Services, or Documentation to a third party you consult with regarding the implementation or use of the Tyler Software and SaaS Services. You must ensure that any such third-party’s use is subject to the terms of this Agreement, and you acknowledge and agree that you are liable for any breach of the terms of this Agreement by such third party.
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 our then-current Support Call Process.
6. SaaS Services.
6.1. Audit & Compliance. Our SaaS Services are audited at least yearly in accordance with the AICPA’s Statement on Standards for Attestation Engagements (“SSAE”) No. 21. We have attained, and will maintain, SOC 1 and SOC 2 compliance, or their equivalent, for so long as you are timely paying for SaaS Services. The foregoing notwithstanding, you acknowledge that the scope of audit coverage varies depending on the specific Tyler Software solution. We will provide you with a summary of our current compliance report(s) or its equivalent, upon your request. For the avoidance of doubt, if our SaaS Services are provided using a third-party data center, the compliance report may be for that third-party provider and be subject to confidential treatment in accordance with applicable law. If you want us to provide our compliance reports to a third-party auditor or similar entity, we reserve the right to require execution of an NDA by that third party.
6.2. Service Levels. The Tyler Software will be made available to you according to the terms of the SLA. Tyler SaaS Services will be provided via a third-party data center. Your Data will be inaccessible to our other customers.
6.3. Business Continuity. Data centers used to deliver SaaS Services for this Agreement have redundant telecommunications access, electrical power, and the required hardware to provide access to the SaaS Services in the event of a disaster or component failure. We test our disaster recovery plan on an annual basis. The plan is not client specific and is detailed in Tyler’s System & Organization Control reports or their equivalent. In the event of a data center failure, we 25977.00300\44859412.1
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reserve the right to employ our disaster recovery plan for resumption of the SaaS Services. In that event, we commit to a Recovery Point Objective (“RPO”) of 24 hours and a Recovery Time Objective (“RTO”) of 24 hours. RPO represents the maximum duration of time between the most recent recoverable copy of your hosted Data and subsequent data center failure. RTO represents the maximum duration of time following data center failure within which your access to the Tyler Software must be restored. If we employ our disaster recovery plan, we will be responsible for restoring your Data and ensuring that the SaaS Services are online, and you will be responsible for validating your Data and confirming the functioning of the SaaS Services, including any integrations.
6.4. Security Measures. We provide secure Data transmission paths between your devices and the data center used to provide SaaS Services to you. Data centers used to provide SaaS Services are accessible only by authorized personnel with a unique key entry or comparable security. We conduct annual penetration testing of either the production network and/or web application to be performed. We will maintain industry standard intrusion detection and prevention systems to monitor malicious activity in the network and to log and block any such activity. You may not attempt to bypass or subvert security restrictions in the SaaS Services or environments related to the Tyler Software. Unauthorized attempts to access files, passwords, or other confidential information, and vulnerability and penetration test scanning of our network and systems (hosted or otherwise) are prohibited. Where applicable with respect to our applications that take or process card payment data, we comply with applicable requirements of PCI DSS. We agree to supply the then-current status of our PCI DSS compliance program in the form of an official Attestation of Compliance, which can be found at https://www.tylertech.com/about- us/compliance and, in the event of any change in our status, we will comply with applicable notice requirements.
SECTION C – PROFESSIONAL SERVICES
1. Professional Services. We will provide you the various implementation-related services itemized in the Investment Summary.
2. Professional Services Fees. You agree to pay us the professional services fees in the amounts set forth in the Investment Summary. The total amount paid for professional services rendered by Tyler for the in-scope work set forth in Exhibit A as of the Effective Date, and in each case inclusive of all costs, unless amended, shall not exceed the sum of:
• for the initial three year term of this contract, One Hundred Seventy Two Thousand, Four Hundred Forty-Two Dollars ($172,442);
• the first optional renewal term, Thirty-Eight Thousand, Six Hundred Fifty-Five Dollars ($38,655); and
• for the second optional renewal term, Forty Thousand, Five Hundred Eighty-Eight ($40,588).
• And, for the avoidance of doubt, for the total five years combined, including the initial thee year term and both optional renewal terms, and first two one-year renewal periods, shall not exceed the sum of Two Hundred Fifty One Thousand, Six Hundred Eighty-Five Dollars ($251,685), inclusive of all costs, unless amended. 25977.00300\44859412.1
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2. Those amounts are based on the scope of the project as of the Effective Date and are payable in accordance with our Invoicing and Payment Policy. This not to exceed commitment is contingent on your best efforts to meet the obligations under this Agreement.
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 our understanding of the specifications you supplied. If changes in the work seem merited by Consultant or the Town, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the Town by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be, in a form mutually agreeable to the parties, and executed by both Parties before performance of such services. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
4. Cancellation. If you cancel services less than two (2) weeks in advance (other than for Force Majeure or breach by us), you will be liable for all (i) daily fees associated with cancelled services if we are unable to reassign our personnel and (ii) any non-refundable travel expenses already incurred by us on your behalf. 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 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 reasonable access to your personnel, facilities, and equipment as may be reasonably necessary for us to provide implementation services, subject to any reasonable security protocols or other written policies provided to us as of the Effective Date, and thereafter as mutually agreed to by you and us.
7. Background Checks. All of our employees undergo criminal background checks prior to hire. All employees sign our confidentiality agreement and security policies.
8. Mutual Assistance. Both Parties acknowledge that the implementation of the Tyler Software is a cooperative process requiring the time and resources of both Tyler and Colma personnel. Each Party certifies that it will use reasonable efforts to cooperate with the other and make resources available for the performance of the Agreement in accordance with its terms and the mutually agreed project schedule. Additionally, you agree to use all reasonable efforts to cooperate with and assist us as may be reasonably required to support the efficient execution of the activities required for this Agreement. Accordingly, each will provide notice to the other of any known inability to timely meet a project commitment so that appropriate project adjustments can be made.
9. Maintenance and Support Services.
• For the duration of this Agreement, consistent with the terms set forth in our then-current Support Call Process, we will:
9..1. perform our maintenance and support obligations in a professional and workmanlike manner, consistent with industry standards, to provide support and resolve Defects in the Tyler Software (subject to any applicable release life cycle policy);
9..2. provide telephone support during our established support hours as indicated in our then-current Support Call Process;
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9..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;
9..4. provide releases to the Tyler Software (including updates and enhancements) that we make generally available without additional charge to customers with a current SaaS Agreement.
• Your use of Tyler Software or SaaS Services requires that you remain current with supported releases of Tyler Software as indicated in any applicable release lifecycle policy. Our warranty and support commitments are contingent upon you using a supported version of the Tyler Software. Tyler may require you to update to a current version of the Tyler Software to address a critical issue (for example, to address an identified security vulnerability in the Tyler Software or a third-party component). Tyler will use commercially reasonable efforts to (i) minimize the number of such instances and (ii) provide as much advance notice as possible. • We will use all reasonable efforts to perform support services remotely. We reserve the right to use secure third-party connectivity tools to deliver maintenance and support services. We also reserve the right to collect Tyler Software or SaaS Services telemetry for product evaluation, quality assurance, and security monitoring and enhancement purposes. You agree to reasonably cooperate with us in providing access to your environments and Data for the purposes of providing maintenance and support services and acknowledge that our warranty, support, and service level obligations under this Agreement are contingent upon receiving reasonable access to your Data and systems.
• 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) telephone support outside our normal business hours as listed in our then-current Support Call Process.
SECTION D – THIRD-PARTY PRODUCTS =
As of the Effective Date, no third party products, services, or software are included in the scope of this Agreement, which is set forth in Exhibit A. If third party products, services, or software are included in any future amendments to this Agreement, then this Section D shall apply.
1. Third-Party Hardware. We will sell and deliver any Third-Party Hardware set forth in the Investment Summary for the price indicated therein. Unless otherwise indicated, installation of Third-Party Hardware will be performed by Tyler or identified third party installers.
2. Third-Party Software. Your rights under this Agreement may include rights to certain Third-Party Software. We certify that we have acquired the right to provide the Third-Party Software to you.
Your rights to the Third-Party Software will be governed by the Third-Party Terms and, in the absence of such terms, this Agreement.
3. Third Party Products Warranties.
3.1 We are authorized by each Developer or its authorized reseller to sell or grant access, as applicable, to the Third-Party Products.
3.2 Unless otherwise expressly indicated, Third-Party Hardware will be new and unused. You will receive free and clear title to the Third-Party Hardware you purchase upon your payment in full of the purchase price.
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3.3 You acknowledge that we are not the manufacturer of Third-Party Products. We do not warrant or guarantee the performance of the Third-Party Products. However, we grant and pass through to you any warranty that we may receive from the Developer or supplier of the Third- Party Products.
4. Third-Party Services. If you have purchased Third-Party Services, those services will be provided independently of Tyler by such third party at the rates set forth in the Investment Summary and in accordance with Exhibit B.
SECTION E – TERM AND TERMINATION
1. Term. The Agreement is binding as of the Effective Date. The initial term of this Agreement shall be three years, beginning on August 1, 2026, and ending July 31, 20312029, if both renewal options are exercised, unless earlier terminated as provided herein. Upon expiration of the initial term, this Agreement may be renewed for two (2) successive one (1) year renewal terms by written modification of this Agreement, executed and approved in the same manner as the Original at Tyler’s then-currentthe SaaS Fees or for a Fee otherwise mutually agreed by the Partiesoutlined in Section C(2). Should both optional renewal terms be exercised, the final ending date for this Agreement shall be July 31, 2031.
2. Holdover. In the event that Town elects not to exercise an option to extend the Agreement, Town and Consultant agree to a one-year hold over period that will provide the Parties time to transition Services and Data to a new service provider, provided that Town shall pay for Tyler’s services at at a mutually agreed rate, not to exceed 5% of prior year’s SaaS Fee for the modules shown on Exhibit A as of the Effective Date.
3. 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 G(2).
3.1. Failure to Pay Fees. You acknowledge that continued access to the SaaS Services is contingent upon your timely payment of undisputed fees. We may Suspend, acting in our sole discretion, this Agreement if you do not cure a failure to pay within sixty (60) days of our notice to you that you have overdue payments.
3.2. For Cause. If you believe we have materially breached this Agreement, you will invoke the Dispute Resolution clause set forth in Section G(2). You may terminate this Agreement for cause after following the procedures set forth in Section G(2).
3.3. 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.
3.4. Lack of Appropriations. This Agreement will terminate without penalty, liability or expense of any kind to the Town at the end of any fiscal year if funds are not appropriated for the next succeeding fiscal year, provided that Client shall give Tyler at least thirty (30) days’ advance written notice prior to such termination. You agree not to use termination for lack of appropriations as a substitute for termination for convenience. You will not be entitled to a refund or offset of previously paid, but unused SaaS Fees. 25977.00300\44859412.1
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SECTION F – INDEMNIFICATION, LIMITATION OF LIABILITY AND INSURANCE
1. Intellectual Property Infringement Indemnification.
1.1. We will defend you 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 sole control over its defense or settlement, provided that we will not agree to any settlement that requires the Town to admit fault or pay costs or damages without the City Council’s prior written approval. You agree to provide us with reasonable assistance, cooperation, and information in defending the claim at our expense.
1.2. Our obligations under this Section F(1) will not apply to the extent the claim or adverse final judgment is based on your negligent use of the Tyler Software in contradiction of this Agreement, including with non-licensed third parties.
1.3. 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:
1.3.1. procure the right to continue its use;
1.3.2. modify it to make it non-infringing; or
1.3.3. replace it with a functional equivalent.
We may elect to employ these remedies in advance of litigation if we receive information concerning an infringement or misappropriation claim.
1.4. 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 indemnify, defend, and hold harmless 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 (i) personal injury, bodily injury, death, or damage to tangible property, all to the extent caused by our negligence or willful misconduct; or (ii) our violation of 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, provided that we will not agree to any settlement that requires the Town to admit fault or pay costs or damages without the City Council’s prior written approval. You agree to provide us with reasonable assistance, cooperation, and information in defending the claim at our expense.
2.2. We will indemnify and hold harmless 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 Tyler’s violation of the confidentiality provisions of Section G(16) of this Agreement, or a breach (as defined by applicable law) of Client’s confidential Data hosted by Tyler under this Agreement, in all cases to the extent caused by Tyler’s negligence or willful misconduct. You must notify us promptly in writing of the claim and give us sole control over its defense or settlement, provided that we will not agree to any settlement that requires the Town to admit fault or pay costs or damages without City Council’s 25977.00300\44859412.1
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prior written approval. You agree to provide us with reasonable assistance, cooperation, and information in defending the claim at our 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. CLIENT UNDERSTANDS AND AGREES THAT TYLER DISCLAIMS ANY LIABILITY FOR ERRORS THAT RELATE TO USER ERROR.
4. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY 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, NOT TO EXCEED (i) DURING THE INITIAL TERM, AS SET FORTH IN SECTION E(1), TWO (2) TIMES HE TOTAL FEES PAID AS OF THE TIME OF THE CLAIM; OR (ii) DURING ANY RENEWAL TERM, TWO (2) TIMES THE THEN-CURRENT ANNUAL SAAS FEES PAYABLE IN THAT RENEWAL TERM THE LIMITS OF TYLER’S INSURANCE. 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, THE EXCLUSION OF CERTAIN DAMAGES, AND EACH SHALL APPLY REGARDLESS OF THE FAILURE OF AN ESSENTIAL PURPOSE OF ANY REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS THAT ARE SUBJECT TO SECTIONS F(1) AND F(2.1).
5. LIMITATION OF LIABILITY FOR BREACH OF CONFIDENTIALITY: NOTWITHSTANDING ANYTHING TO
THE CONTRARY SET FORTH IN THIS AGREEMENT, OUR LIABILITY FOR DAMAGES ARISING OUT OF SECTION F(2.2) OF THIS AGREEMENT, WHETHER BASED ON THEORY OF CONTRACT OR TORT,
INCLUDING NEGLIGENCE AND STRICT LIABILITY, SHALL BE LIMITED TO YOUR ACTUAL DIRECT DAMAGES, NOT TO EXCEED (i) DURING THE INITIAL TERM, AS SET FORTH IN SECTION E(1), THREE (3) TIMES THE TOTAL FEES PAID AS OF THE TIME OF THE CLAIM; OR (ii) DURING ANY RENEWAL TERM, THREE (3) TIMES 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, THE EXCLUSION OF CERTAIN DAMAGES, AND EACH SHALL APPLY REGARDLESS OF THE FAILURE OF AN ESSENTIAL PURPOSE OF ANY REMEDY. THE
FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS THAT ARE SUBJECT TO SECTIONS F(1) AND F(2.1).
5.6. EXCLUSION OF CERTAIN DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT,
OR CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.7. Insurance.
6.1.7.1. During the course of performing services under this Agreement, Tyler agrees to maintain the following levels of insurance:
6.1.1.7.1.1. Commercial General Liability of at least $1,000,000 per occurrence, $2,000,000 general aggregate;
6.1.2.7.1.2. Automobile Liability of $1,000,000 combined single limit; 25977.00300\44859412.1
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6.1.3.7.1.3. ( Professional Liability (inclusive of cyber protection) of $1,000,000 per claim and in the aggregate, which includes cyber security claims arising from a data breach;
6.1.4.7.1.4. Workers Compensation and Employer’s Liability complying with applicable statutory requirements and in the amount of $1,000,000 each accident or disease; and
6.1.5.7.1.5. Excess/Umbrella Liability of $5,000,000.
6.2.7.2. Tyler will add Client as an additional insured to Tyler’s Commercial General Liability and Automobile Liability policies, which will automatically add you as an additional insured to Tyler’s Excess/Umbrella Liability policy as well. A certificate of insurance reflecting that status shall be provided before the Agreement is executed.
6.3.7.3. Renewal certificates of insurance will be provided as close as practicable to the date the applicable policy or policies is/are renewed. Tyler’s carrier has issued and shall provide blanket endorsements regarding additional insured status; Tyler does not issue separate endorsements specific to each customer.
6.4.7.4. Tyler’s insurance coverage is evidenced using a standard Acord form.
6.5.7.5. Tyler agrees to secure our insurance from a carrier with a minimum AM Best rating of A- :VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
6.6.7.6. Copies of Tyler’s insurance policies are made available only in the event a claim is disputed or denied.
6.7.7.7. Tyler will disclose its deductibles upon written request, but those deductibles are not subject to Client approval. Tyler is well-positioned financially to satisfy its deductibles and shall be solely responsible for the payment of any deductible or self-insured retention.
6.8.7.8. Tyler agrees that Tyler’s insurance is primary for claims under our Commercial General Liability or Automobile Liability policies that are caused, in whole or in part, by Tyler as respects the Agreement.
6.9.7.9. Tyler shall provide an endorsement waiving subrogation on claims under Tyler’s Commercial General Liability or Automobile Liability, and, to the extent permitted under applicable law, Worker’s Compensation and Employer’s Liability, policies that arise out of or relate to the Agreement and are between us and you , except to the extent the damage or injury is caused by Client.
6.10.7.10. Consultant shall maintain such coverage continuously for a period of at least three (3) years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
6.11.7.11. Tyler will agree to provide Client with notice of cancellation or non-renewal, or reduction in Tyler’s insurance coverages below the minimum requirements set forth in the Agreement within thirty (30) days thereof unless replaced. 25977.00300\44859412.1
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SECTION G – GENERAL TERMS AND CONDITIONS
1. Additional Products and Services. You may purchase additional 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. If no rate is provided in the Investment Summary, or those twelve (12) months have expired, you may purchase additional products and services at our then-current pricing, also by executing a mutually agreed addendum . The terms of this Agreement will control any such additional purchase(s), unless otherwise specifically provided in the addendum.
2. Performance Issues and Dispute Resolution.
2.1. Notice. You agree to provide us with written notice within forty-five (45) days of receipt of an invoice (for invoice disputes) or, in the case of performance, becoming aware of an issue related to our performance under this Agreement.
2.2. Invoice Issues.
2.2.1. If the issue relates to an invoice, your notice must include the following: (i) the issue(s) with the invoice; (ii) the specific fee(s) at issue; and (iii) the corrective action(s) you are requesting of Tyler.
2.2.2. We will provide a response to your notice that (i) supports the validity of the invoice as issued by us; (ii) adjusts the invoice; or (iii) describes our plan to address the issues identified in your notice.
2.2.3. You agree to pay all undisputed fees by the due date.
2.2.4. WE RESERVE THE RIGHT TO SUSPEND PERFORMANCE OF ANY SERVICE, INCLUDING
ACCESS TO SAAS SERVICES, FOR FAILURE TO TIMELY PAY UNDISPUTED FEES AS SET FORTH IN Section E(3.1).
2.3. Dispute Resolution. 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 thirty (30) 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, then the parties shall participate in mediation in an effort to resolve the dispute. If the dispute remains unresolved after mediation, then either of us may assert our respective rights and remedies in a court of competent jurisdiction. Nothing in this section shall prevent you or us from seeking necessary injunctive relief during the dispute resolution procedures.
3. Taxes. We will pay all applicable taxes to the proper authorities, and you will reimburse us for such taxes. For clarity, we are responsible for paying our income taxes, both federal and state, as applicable, arising from our performance of this Agreement.
4. Nondiscrimination. We will not discriminate against any employee or applicant in our employment practices or the performance of our duties, responsibilities, and obligations under this Agreement because of race, color, religion, gender, age, disability, religious beliefs, national, or ethnic origin.
We will post, where appropriate, all notices related to nondiscrimination as may be required by applicable law.
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5. E-Verify. We use the U.S. Department of Homeland Security’s E-Verify system to confirm the eligibility of all current employees and persons hired during the contract term to perform services within the United States under this Agreement.
6. Subcontractors. We will not subcontract any Professional Services specifically for this Agreement without your prior written consent, not to be unreasonably withheld.
7. Binding Effect; No Assignment. This Agreement shall be binding on, and shall be for the benefit of, either your or our successor(s) or permitted assign(s). Neither party may assign this Agreement without the prior written consent of the other party, provided, however, your consent is not required for an assignment by us as a result of a corporate reorganization, merger, acquisition, or purchase of substantially all of our assets. Within six (6) months of assignment by us as a result of a corporate reorganization, merger, acquisition, or purchase of substantially all of our assets, Tyler will notify the City in writing. All terms of this Agreement shall be accepted by the new entity as our successor.
8. 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 caused by Force Majeure; provided, however, that within ten (10) business days of the Force Majeure event, the party whose performance is delayed provides the other party with written notice explaining the cause and extent thereof, as well as a request for a reasonable time extension equal to the estimated duration of the Force Majeure event.
9. 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 claim or assert any right under this Agreement. This provision does not affect the rights of third parties under any Third-Party Terms.
10. 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, or implied. Purchase orders submitted by you, if any, are for your internal administrative purposes only, and the terms and conditions contained in those purchase orders will have no force or effect. This Agreement may only be modified in writing, signed by an authorized representative of the party against whom enforcement is sought.
11. Severability. If any term or provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will be considered valid and enforceable to the fullest extent permitted by law.
12. 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.
13. Independent Contractor. We are an independent contractor for all purposes under this Agreement.
14. 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: (i) actual receipt by the receiving party; or (ii) five (5) days following deposit with 25977.00300\44859412.1
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registered or certified mail with proper postage affixed and addressed to the other party at the address set forth in this Agreement 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.
15. Client Lists. You agree that we may identify you by name in client lists and, only with your written permission in advance, marketing presentations and promotional materials.
16. Confidentiality. Subject to the disclosure requirements of the California Public Records Act, and taking into account the exemptions from disclosure of the California Public Records Act, 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:
i. 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;
ii. a party can establish by reasonable proof was in that party's possession at the time of initial disclosure;
iii. a party receives from a third party who has a right to disclose it to the receiving party; or iv. is the subject of a legitimate disclosure request under the open records laws or similar applicable public disclosure laws governing this Agreement; provided, 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. In the event that a requesting party commences legal action to compel disclosure of information that Tyler contends is exempt, Tyler agrees to defend, indemnify, and hold harmless the Town in any such action.
17. 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.
18. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of your state or commonwealth of domicile, without regard to its rules on conflicts of law. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state court serving or situated in the County of San Mateo, State of California.
19. 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. 25977.00300\44859412.1
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Each party represents to the other that the signatory set forth below is duly authorized to bind that party to this Agreement.
20. Records Retention. Tyler will maintain complete and accurate records of time and expense relating directly to the Agreement for the greater of five (5) years from their creation or the period required by applicable law.
21. Compliance with Applicable Laws. Tyler, in the performance of services, will comply with all applicable state and federal laws and regulations. The fees in the Investment Summary are based, in part, on the cost of compliance with applicable laws existing as of the Effective Date. Should laws applicable to Tyler’s performance under the Agreement change after the Effective Date, Tyler reserves the right to seek a change order for the additional work, time, or cost that may be required to comply with the new law or regulation.
22. Prohibited Interests.
22.1. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Town shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of Town, during the term of his or her service with Town, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
22.2. Notwithstanding the foregoing, Client understands that Tyler is a publicly traded company, owned by its shareholders, and whose shares are bought and sold on the market daily in transactions over which Tyler has no control. Tyler expects Town employees and officials to comply with the conflict-of-interest and ethics rules that apply to them.
23. Contract Documents. This Agreement includes the following exhibits:
Migration Terms Addendum
Exhibit A Investment Summary
Exhibit B Invoicing and Payment Terms
Exhibit C Service Level Agreement
Exhibit D Third-Party Terms (Reserved)
Exhibit E Statement of Work
Exhibit F Data Security Addendum
[Signature Page Follows]
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IN WITNESS WHEREOF, a duly authorized representative of each party has executed this Agreement as of the date(s) set forth below.
Tyler Technologies, Inc. City of Colma, California
By:
By:
Name: Name:
Title: Title:
Date:
Date:
ATTEST:
By:
City Clerk
Address for Notices:
Address for Notices:
Tyler Technologies, Inc. City of Colma
7701 College Boulevard 1198 El Camino Real
Overland Park, KS 66210 Colma, CA 94014
Attention: Chief Legal Officer Attention: ___________________________
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Migration Terms Addendum
1. Scope. The terms in this MigraƟon Terms Addendum (“Addendum”) apply to the agreement to which it is aƩached (“Agreement”), and under which we will provide certain Tyler soŌware soluƟons listed in the Agreement’s Investment Summary (hereaŌer, the “Replacement Modules”) to replace some or all of Tyler soluƟons previously provided to you (hereaŌer, the “MigraƟon Modules”). Accordingly, any conflict between the terms in this Addendum and the Agreement will be resolved in favor of the term(s) in this Addendum. The MigraƟon Modules are listed in the Comments SecƟon of the Investment Summary, and any capitalized terms not otherwise defined herein will have the meaning assigned to those terms in the Agreement.
2. Support & SaaS Services for MigraƟon Modules. Your payment of annual SaaS Fees for the Replacement Modules includes annual maintenance and support services in the scope described by the Agreement, and, to the extent currently being provided, annual SaaS Services, for the MigraƟon Modules for the Ɵme period covered by your payment of annual SaaS Fees.
3. License/Use Rights for MigraƟon Modules. Unless expressly stated otherwise in the Agreement, your license to use a MigraƟon Module terminates when the applicable Replacement Module is used in live producƟon.
4. Credit for Prepaid Fees for MigraƟon Modules. In the event you prepaid annual maintenance or SaaS fees for MigraƟon Modules for any Ɵme during your annual SaaS Term for your Replacement Modules, Tyler will credit that prepayment to your account. This credit may be applied towards any future purchases from Tyler under the Agreement.
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Exhibit A
Investment Summary
The Investment Summary details the products and services to be delivered by us, to you under the Agreement. This Investment Summary is effective as of the Effective Date regardless of any expiration date in the Investment Summary. Capitalized terms not otherwise defined will have the meaning assigned to such terms in the Agreement.
[Sales quotation to be inserted prior to Agreement execution.]
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
2025-565917-S6S5H1 CONFIDENTIAL Page 1 Billing Address:
COLMA, CA CITY OF
1198 EL CAMINO REAL
COLMA CA 94014
Nathan Bassett
(650) 997-8309
[email protected]
Quoted By Brandon Swanson
Quote Expiration 6/15/26
Quote Name Eden to ERP Pro 10 w/SaaS
Migration
Tyler Annual Software – SaaS
Description List Price Discount Annual
ERP Pro
ERP Pro 10 Financial Management Suite
AP Automation Capture with Disbursements $ 3,600 $ 360 $ 3,240 Core Financials $ 14,786 $ 1,479 $ 13,307
Contracts Management $ 0 $ 0 $ 0
Fixed Assets $ 1,865 $ 373 $ 1,492
Human Resources Management (Includes Position Budgeting) $ 4,498 $ 450 $ 4,048 Employee Access Pro $ 0 $ 0 $ 0
Project Accounting $ 3,469 $ 694 $ 2,775
Employee Access Pro Time & Attendance $ 1,000 $ 100 $ 900 Purchasing $ 4,457 $ 891 $ 3,566
Accounts Receivable $ 3,891 $ 778 $ 3,113
Tyler One
Content Manager Suite
2025-565917-S6S5H1 CONFIDENTIAL Page 2 Tyler Annual Software – SaaS
Description List Price Discount Annual
Content Manager Core $ 5,466 $ 1,093 $ 4,373
TOTAL: $ 43,032 $ 6,218 $ 36,814
Term # of Years: 3
Tyler Fees per Transaction
Description Net Unit Price
ERP Pro
ERP Pro 10 Financial Management Suite
AP Automation Disbursements $ 0.00
Services
Description Hours/Units Extended Price
ERP Pro 10 Financial Management Suite
Professional Services 1 $ 62,000
TOTAL: $ 62,000
Summary One Time Fees Recurring Fees
Total SaaS $ 36,814
Total Tyler Services $ 62,000
Summary Total $ 62,000 $ 36,814
2025-565917-S6S5H1 CONFIDENTIAL Page 3 Comments
Modules migrating from Eden to ERP Pro 10:
Accounts Payable
Accounts Receivable
General Ledger
Payroll
Purchasing
Work will be delivered remotely unless otherwise noted in this agreement.
Expenses associated with onsite services are invoiced as incurred according to Tyler's standard business travel policy.
SaaS is considered a term of one year unless otherwise indicated.
Core Financials Includes general ledger, budget prep, bank recon, AP, CellSense, a standard forms pkg, output director, positive pay, secure signatures, Tyler University.
Human Resources Management (Includes
Position Budgeting)
Includes Position Budgeting and Tyler University
AP Automation Capture with Disbursements A fully automated vendor payment system, including an automated invoice capture system, invoice approval system, AP Invoice Access.
Tyler Software may include artificial intelligence (“AI”) features that are provided as an administrative convenience, designed to analyze data or make suggestions, subject to changing laws applicable in your local jurisdiction. Client is responsible for independently validating the accuracy of data analyzed or suggestions provided via AI features and using such features only to the extent permissible under applicable law.
AP Automation Disbursements Expedited disbursement options available to vendors include instant transfer to a bank account, PayPal, Venmo and fast ACH where fees may apply. No fee options include standard ACH, and physical checks. All disbursements will be made pursuant to the terms and conditions found at https://www.tylertech.com/client-terms/ap-automation-disbursements-software-and-services-terms-of-use Client agrees that items in this sales quotation are, upon Client's signature or approval of same, hereby added to the existing agreement ("Agreement") between the parties and subject to its terms. Additionally, payment for said items, as applicable but subject to any listed assumptions herein, shall conform to the following terms, subject to payment terms in an agreement, amendment, or similar document in which this sales quotation is included:
2025-565917-S6S5H1 CONFIDENTIAL Page 4 •License fees for Tyler and third-party software are invoiced upon the earlier of (i) delivery of the license key or (ii) when Tyler makes such software available accessible. •Fees for hardware are invoiced upon delivery.
•Fees for year one of hardware maintenance are invoiced upon delivery of the hardware. •Annual Maintenance and Support fees are first payable when Tyler makes the software accessible to the Client, and SaaS fees, Hosting fees, and Subscription fees are first payable on the first day of the month following the date this quotation was signed (or if later, the commencement of the agreement’s initial term). Any such fees are prorated to align with the applicable term under the agreement, with renewals invoiced annually thereafter in accord with the agreement.
Fees for services included in this sales quotation shall be invoiced as indicated below. •Implementation and other professional services fees shall be invoiced as delivered. •Client has six months to use the services. If Client does not use the services within six months, Tyler may remove the unused services or issue a new quote to provide services at then-current rates.
•Fixed-fee Business Process Consulting services shall be invoiced 50% upon delivery of the Best Practice Recommendations, by module, and 50% upon delivery of custom desktop procedures, by module.
•Fixed-fee conversions are invoiced 50% upon initial delivery of the converted data, by conversion option, and 50% upon Client acceptance to load the converted data into Live/Production environment, by conversion option. Where conversions are quoted as estimated, Tyler will invoice Client the actual services delivered on a time and materials basis. •Except as otherwise provided, other fixed price services are invoiced upon complete delivery of the service. For the avoidance of doubt, where "Project Planning Services" are provided, payment shall be invoiced upon delivery of the Implementation Planning document. Dedicated Project Management services, if any, will be invoiced monthly in arrears, beginning on the first day of the month immediately following initiation of project planning. •If Client has purchased any change management services, those services will be invoiced in accordance with the Agreement. •Notwithstanding anything to the contrary stated above, the following payment terms shall apply to fees specifically for migrations: Tyler will invoice Client 50% of any Migration Services Fees listed above upon Client approval of the product suite migration schedule. The remaining 50%, by line item, will be billed upon the go-live of the applicable product suite. Tyler will invoice Client for any Project Management Fees listed above upon the go-live of the first product suite. Annual SaaS Fees will be invoiced upon availability of the hosted environment.
Any SaaS or hosted solutions added to an agreement containing Client-hosted Tyler solutions are subject to Tyler’s SaaS Services terms found here: https://www.tylertech.com/terms/tyler-saas- services.
Unless otherwise indicated in the contract or amendment thereto, pricing for optional items will be held for six (6) months from the Quote date or the Effective Date of the Contract, whichever is later.
Customer Approval: Date:
Print Name: P.O.#:
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Exhibit B
Invoicing and Payment Terms
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.
Invoicing: 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. Tyler Annual Services.
1.1. SaaS Services. SaaS Fees are invoiced on an annual basis, beginning on the commencement of the initial term as set forth in Section E(1) of this Agreement. Your annual SaaS fees for the initial term are set forth in the Investment Summary. Upon expiration of the initial term, and, if exercised, the two optional renewal terms contemplated in this agreement as of the Effective Date, your annual SaaS fees will be at our then-current rates, but in no case shall the SaaS fees for the products listed in Exhibit A as of the Effective Date increase more than five percent (5%) year over year.
1.2. Other Annual Services. Fees for annual services other than SaaS Services are invoiced on an annual basis, beginning with the availability of the service. Your annual fees for the initial term are set forth in the Investment Summary. Upon expiration of the initial term, your annual fees will be at our then-current rates.
2. Tyler Services.
2.1. Professional Services Generally: Unless otherwise indicated below, Tyler will invoice Client for Professional Services on a milestone basis. Tyler will invoice Client for the milestone amount set forth below upon completion and acceptance of the associated services in accordance with the Agreement and/or SOW.
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3. Transaction Fees. Unless paid directly by an end user at the time of transaction, per transaction (call, message, etc.) fees are invoiced on a monthly basis. Fees are indicated in the Investment Summary and may be increased by Tyler upon notice of no less than thirty (30) days. Colma does not intend to use services that would incur a transaction fee at the time of contract signingas of the Effective Date, and will provide 30 days’ written notice to Tyler should Colma decide to use such services.
4. Expenses. The service rates in the Investment Summary do not include travel expenses. Expenses for Tyler delivered services will be billed as incurred and only in accordance with our then-current Business Travel Policy.
Payment. Payment for undisputed invoices is due within forty-five (45) days of the invoice date. We prefer to receive payments electronically. Our electronic payment information is available by contacting [email protected].
Last Updated: August 4, 2023
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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 related to th e availability of the Tyler SaaS Services that you have requested us to provide. All other support services are documented in the Support Call Process. This SLA does not apply to any Third-Party SaaS Services.
II. Definitions. Except as defined below, all defined terms have the meaning set forth in the Agreement.
Actual Attainment: The percentage of time the Tyler Software is available during a calendar month, calculated as follows: (Service Availability – Downtime) ÷ Service Availability.
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 Service Availability, as defined below, when all users cannot launch, login, search or save primary data in the Tyler Software. Downtime do es not include those instances in which only a Defect is present.
Emergency Maintenance Window: (1) maintenance that is required to patch a critical security vulnerability; (2) maintenance that is required to preven t an imminent outage of Service Availability; or (3) maintenance that is mutually agreed upon in writing by Tyler and the Client.
Planned Downtime: Downtime that occurs during a Standard or Emergency Maintenance window.
Service Availability: The total number of minutes in a calendar mont h that the Tyler Software is capable of receiving, processing, and responding to requests, excludi ng Planned Downtime, Client Error Incidents, denial of service attacks and Force Majeure. Service Availability only applies to Tyler Software being used in the production environment.
Standard Maintenance: Routine maintenance to the Tyler Software and infrastructure. Standard Maintenance is limited to five (5) hours per week.
III. Service Availability
a.
Your Responsibilities
Whenever you experience Downtime, you must make a suppo rt call according to the procedures outlined in the Support Call Process. You will receive a support case number. b. Our Responsibilities
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 Planned Downtime, a Client Error Incident, denial of service attack or Force Maje ure). We will also work with you to resume normal operations.
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c. Client Relief
Our targeted Attainment Goal is 100%. You may be entitled to credits as indicated in the Client Relief Schedule found below. Your relief credit is calculated as a percentage of the SaaS Fees paid for the calendar month.
In order to receive relief credits, you must submit a request through one of the channels listed in our Support Call Process within fifteen (15) days of the end of the applicable month. We will respond to your relief request within thirty (30) days of receipt.
The total credits confirmed by us will be applied to the S aaS Fee for the next billing cycle. Issuing of such credit does not relieve us of our obligations under the Agreem ent to correct the problem which created the service interruption.
Credits are only payable when Actual Attainment results in eligibility for credits in consecutive months and only for such consecutive months.
Client Relief Schedule
Actual Attainment Client Relief
99.99% - 99.70% Remedial action will be taken
99.69% - 98.50% 2% of SaaS Fees paid for applicable month
98.49% - 97.50% 4% of SaaS Fees paid for applicable month
97.49% - 96.50% 6% of SaaS Fees paid for applicable month
96.49% - 95.50% 8% of SaaS Fees paid for applicable month Below 95.50% 10% of SaaS Fees paid for applicable month * Notwithstanding language in the Agreement to the contrary, Recovery Point Objective is one (1) hour.
IV. Maintenance Notifications
We perform Standard 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.
Not all maintenance activities will cause application unavailability. However, if Tyler anticipates that activities during a Standard or Emergency Maintenance window may make the Tyler Software unavailable, we will provide advance notice, as reasonably practicable, that the Tyler Software will be unavailable during the maintenance window.
Last Updated: August 4, 2023
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Exhibit C
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 func tionality-based questions, users may create support incidents through the Tyler Customer Portal available at the Tyler Technologies website. A built-in Answer Panel provides users with resolutions to most "how-to" and configuration-based questions through a simplified search interface with machine learning, potentially eliminating the need to submit the support case.
(2) Email - for less urgent situations, users may subm it emails directly to the software support group. (3) Telephone - for urgent or complex questions, users receive toll-free, telephone software support. * Channel availability may be limited for certain applications.
Support Resources
A number of additional resources are available to provide a comprehensive and complete support experience:
(1) Tyler Website - www.tylertech.com - for accessing client tools, documentation, and other information including support contact information.
(2) Tyler Search -a knowledge based search engine that lets you search multiple sources simultaneously to find the answers you need, 24x7.
(3) 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. (4) Tyler University- online training courses on Tyler products.
Support Availability
Tyler Technologies support is available during the local business hours of 8 AM to 5 PM (Monday - Friday) across four US time zones (Pacific, Mountain, Central and Eastern). Tyler's holiday schedule is outlined below. There will be no support coverage on these days.
New Year's Day Labor Day
Martin Luther King, Jr. Day Thanksgiving Day
Memorial Day Day after Thanksgiving
Independence Day Christmas Day
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For support teams that provide after-hours service, 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 effo rts 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.
Incident Handling
Incident Tracking
Every support incident is logged into Tyler's Customer Relationship Management System and given a unique case number. This system tracks the history of each incident. The case number is used to track and reference open issues when clients contact support. Clients may track incidents, using the case number, through Tyler's Customer Portal or by calling software support directly.
Incident Priority
Each incident is assigned a priority level, which corresponds to the Client's needs. 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 th at Tyler and the Client ha ve successfully validated the reported Defect/support incident.
Priority
Level
Characteristics of Support Incident
Resolution Targets*
1 Critical
Support incident that causes (a)
complete application failure or
application unavailability; (b) application
failure or unavailability in one or more of
the client's remote location; or (c)
systemic loss of multiple essential system
functions.
Tyler shall provide an initial response to Priority Level 1 incidents within one (1) business hour of receipt of the incident. Once the incident has been confirmed, Tyler
shall use commercially reasonable efforts to resolve such support incidents or provide a circumvention procedure
within one (1) 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.
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Priority
Level
Characteristics of Support Incident
Resolution Targets*
2 High
Support incident that causes (a)
repeated, consistent failure of essential
functionality affecting more than one
user or (b) loss or corruption of data.
Tyler shall provide an initial response to Priority Level 2 incidents within four (4) business hours of receipt of the incident. Once the incident has been confirmed, Tyler
shall use commercially reasonable efforts to resolve such support incidents or provide a 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.
3 Medium
Priority Level 1 incident with an
existing circumvention procedure, or a
Priority Level 2 incident that affects only
one user or for which there is an existing
circumvention procedure.
Tyler shall provide an initial response to Priority Level 3 incidents within one (1) business day of receipt of the incident. Once the incident has been confirmed, Tyler
shall use commercially reasonable efforts to resolve such support incidents without the 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.
4 Non-critical
Support incident that causes failure of
non-essential functionality or a
cosmetic or other issue that does not
qualify as any other Priority Level.
Tyler shall provide an initial response to Priority Level 4 incidents within two (2) business days of receipt of the incident. Once the incident has been confirmed, Tyler
shall use commercially reasonable efforts to resolve such support incidents, as well as cosmetic issues, with a future version release.
*Response and Resolution Targets may differ by product or business need Incident Escalation
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 the appropriate resource, as outlined by each product support team. The correspondi ng resource will meet with you and any Tyler staff to establish a mutually agreeable plan for addressing the defect.
Remote Support Tool
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.
Last Updated: August 4, 2023
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Exhibit D
Third Party Terms
RESERVED
Last Updated: August 4, 2023
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Exhibit E
Statement of Work
The Statement of Work details the project plan for the implementation of products and services to be delivered by us, to you under the Agreement. This Statement of Work is effective as of the Effective Date
[Statement of Work to be inserted prior to Agreement execution.]
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Exhibit F
Data Security
1. Data Security. To mitigate against or prevent unauthorized access of Town Data, Company shall at all times during the Term provide and maintain up-to-date security with respect to (a) the Services, (b) Company’s website, (c) Company's physical facilities, (d) Company’s infrastructure, and (e) Company’s networks. Company shall provide security for its networks and all Internet connections consistent with industry best practices, and will promptly within a commercially reasonable period install all patches, fixes, upgrades, updates and new versions of any security software it employs. Company will maintain appropriate safeguards to restrict access to Town’s Data to those employees, agents or service providers of Company who need the information to carry out the purposes for which it was disclosed to Company.
2. Data Breach: In the event of any data breach that compromises or is suspected to compromise the security, confidentiality, or integrity of Town Data, Company shall immediately notify the Town within the time frame required by applicable state or federal lawCompany and shall comply with all reporting, root cause analyses, corrective actions, and other requirements to the extent required by applicable state or federal law with respect to the Company’s role when processing Town Data on behalf of the Town as directed by the Town acting in its sole discretion.
3. Data Transmission. Company shall ensure that all electronic transmission or exchange of system and application data with Town and/or any other parties expressly designated by Town shall take place via encrypted secure means. Company shall also ensure that all data exchanged shall be used expressly and solely for the purposes enumerated of fulfilling Company’s obligations under in the Agreement. Data shall not be distributed, repurposed or shared across other applications, environments, or business units of Company unless required to fulfill Company’s obligations under the Agreement. Company shall ensure that no Town Data of any kind shall be copied, modified, destroyed, deleted, transmitted, exchanged or otherwise passed to other vendors or interested parties except on a case-by-case basis unless required to fulfill Company’s obligations under the Agreement or as specifically agreed to in writing by Town. Company may access Town Data from Hawaii, The Philippines, and/or the United Kingdom, but is strictly prohibited from storing Town Data outside the continental United States.
4. American Institute of Certified Public Accounts (AICPA) Audit Reports.
Company shall provide to Town, on an annual basisupon Town’s request, an SSAE 18, SOC 2, Type 2 Report, and an SSAE 18, SOC 1, Type 2 Audit Report, to be conducted by an independent third party (“Audit Reports”). (if Company is using a hosting service provider, Company shall provide such Audit Reports it receives from its service provider or providers) as follows: (a) the Audit Reports shall include a 365 day (12-month) testing period; and (b) the Audit Reports shall be available to Town no later than thirty (30) days after they are received by Company. If Company receives a so-called “negative assurance opinion,” or the annual Audit Report finds a material data privacy or information security issue, Company shall notify Town of such opinion within three (3) days of receipt by Company. Company shall implement reasonably required safeguards as identified by any audit of Company’s data privacy and information security program or promptly notify Town in writing if Company is unable to implement mitigation measures to address the issue(s). Upon any such notification, Town shall have the right, without further obligation or liability to Company, to terminate this Agreement.
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5. Audit of Company’s Policies. Company agrees to make its policies, procedures and practices regarding Data Security available to Town, if needed, and agrees that Town reserves the rights, including, but not limited to, making a site visit, scanning for malicious codes, and hiring a third-party to perform a security audit if Town determines that the Audit Report is unsatisfactory.