This Software as a Service License Agreement, (including the Multiple Award Schedule contract for those U.S. Government Clients purchasing the Data & Insights (FKA Socrata) SaaS Solutions under such vehicle), is the entire agreement between the Client and Tyler relating to the propriety software products procured through Tyler or an Authorized Reseller, and it governs the Client’s use as an end user of the Tyler proprietary software products.
Section A: Definitions
- “Active Account” means an account where the User was invited to the site, accepted the invitation, and where the account has not been deactivated.
- “Agreement” means this Software as a Service License Agreement.
- “API” means application-programming interface.
- “API Calls” means a request made against a SaaS Service.
- “Authorized Reseller” means an entity with whom Tyler has an independent contractor business relationship such as a reseller or supplier of software and/or services. The parties acknowledge and agree that in this context, the term "Authorized Reseller” shall not imply any legal or statutory partnership concepts.
- “Client” means the country, state, or local government, an agency, or entity of the U.S. or other country, state, or local government, or an authorized non-governmental organization acting on behalf of the U.S. or other country, state, or local government that is identified in the Purchase Order accepting this Agreement, or in the case of a U.S. Government Client, the Ordering Activity, as defined in GSA Order ADM 4800.2G, as may be revised from time to time, and as identified in the Purchase Order or Task Order.
- “Client Data” means data, datasets, files, information, content, and links uploaded or provided by Client through the use of the SaaS Services, but excluding Third Party Services.
- “Confidential Information” means 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.
- “Dataset” means the physical collection of information, typically modeled as a table of rows and columns of data.
- “Data Storage” means the contracted amount of storage capacity for Client Data.
- “Documentation” means any online or written documentation and specifications related to the use of the SaaS Services that we provide, including instructions, user guides, manuals, and other training or self-help documentation.
- “Effective Date” means the date Start Date identified in the Order Form or Purchase Order. If a Client is a US Government Client, then the Effective Date is the date of the contract award or order issued by the government agency to purchase the SaaS Services and/or any Professional Services.
- “Force Majeure” means an event beyond the reasonable control of you or us, including, without limitation, hurricanes, earthquakes, epidemics, strikes or other labor disputes, governmental action, changes in laws, acts of war, terrorism or other riot or civil commotion, fire, natural disaster, shelter-in-place or similar orders, or any other cause that could not with reasonable diligence be foreseen or prevented by you or us.
- “Guest User” means a user that is outside of the organization invited by a User to collaborate on the Client’s site.
- “Order Form” or “Purchase Order” means an ordering document, that references the attached Quote or Investment Summary, specifying the SaaS Solutions or Professional Services to be provided hereunder that is entered into between Client and Tyler or Client and Authorized Reseller, including any addenda and supplements thereto.
- “Quote” or “Investment Summary” means an estimate provided by Tyler for the SaaS Services or Professional Services as further defined in the Order Form or Purchase Order.
- “SaaS Services” means the Data & Insights off the shelf, cloud-based software service and related services, including maintenance and support services, as specified under this Agreement. SaaS Services do not include support of an operating system or hardware, support outside of Tyler’s normal business hours, or training, consulting, or other professional services.
- “Site” means single domain or instance of the Open Data platform, Socrata Connected Government Cloud, or the Enterprise Data Platform Site and the number of Sites permitted is defined in the Quote or Order Form.
- “SLA” means the service level agreement described in Section C of this Agreement.
- “Support Policy” means the Client support policy applicable to you for the SaaS Services pursuant to this Agreement. The most recent Support Policy is available online at https://support.socrata.com/hc/en-us/articles/216962648-Support-Policy. The Support Policy may be updated from time to time and.
- “Statement of Work” means the agreed upon scope of services and industry standard implementation plan describing how other services will be provided, the roles and responsibilities of the Client in connection to the implementation. If applicable, the Statement of Work will be included with the Order Form.
- “Third-Party Data” means an aggregated dataset solution by a third-party data provider and shall be treated as Confidential Information.
- “Third-Party Data Purpose” means to use the Third-Party Data alone or in conjunction with other intelligence, data, or logic for internal modeling, targeting, measurement, and internal reporting solely for the benefit of the Customer.
- “Third-Party Services” means if any, third-party web-based services, including but not limited to third party stock photos and third-party map location services which may be provided at no additional charge to you through this Agreement.
- “Tyler” means Tyler Technologies, Inc., a Delaware corporation.
- “Updates” means any enhancements, additions, new releases, bug fixes, patches, modifications or other error corrections of or to the SaaS Software or Third-Party Data licensed to Customer that Tyler generally makes available free of charge to licensees of the solutions.
- “User” or "Monthly Active Users" (used interchangeably) means any Active Account added to the Client’s Site that is not a Guest User.
- “we”, “us”, “our” and similar terms mean Tyler.
- “you” and similar terms mean Client.
Section B: SaaS Services
As of the Effective Date, Tyler grants to Client the non-exclusive, non-assignable limited right to use the SaaS Services on a subscription basis. The SaaS Services will be made available to Client according to the terms of the SLA. Client may use the SaaS Services to access updates and enhancements to the SaaS Services, as described in Section C(5.1). Unless otherwise, terminated Client’s right to access or use the SaaS Services will terminate at the end of the subscription period defined in the Order Form.
During the subscription period, Tyler reserves the right to exercise the usage limits set forth in the Order Form. If Client exceeds a contractual usage limits, Tyler may work with Client to seek to reduce Client’s usage so that it conforms to that limit. If, Client is unable or unwilling to abide by a contractual usage limit, or if Client wishes to add additional Users, Data Storage, it will require a written contract amendment, modification, or Client will execute an Order Form for additional quantities of the applicable SaaS Services.
- 3.1 This Agreement does not provide Customer with title or ownership of the SaaS Services, or Third-Party Data, but only a right of limited use as further delineated herein. The SaaS Services, other services, workflow processes, user interface, designs, and other technologies provided by Tyler pursuant to this Agreement are the proprietary property of Tyler and its licensors. All right, title, and interest in and to such items, and if applicable anything developed by Tyler under this Agreement, including all associated intellectual property rights, remain only with Tyler. Client may not remove or modify any proprietary marking or restrictive legends from items or services provided under this Agreement. Tyler reserves all rights unless otherwise expressly granted in this Agreement. Third-Party Data vendors also retain ownership, title and all rights and interest, including, without limitation, Intellectual Property Rights in and to their own respective software, data, and documentation.
- When Client uploads or provides Client Data to the Data & Insights SaaS platform, Client grants to Tyler a perpetual non-exclusive, worldwide, royalty-free, license to use, reproduce, publicly display, distribute, modify, create derivative works of, and translate the Client Data as needed in response to a User’s use of the SaaS Services and as needed for the purpose of providing analytics to a User.
- Tyler reserves the right to develop derivative data assets based on Customer Data Customer makes publicly available. Tyler may use, disclose, sell, and transfer the derivative data assets for any lawful purpose, including but not limited to: aggregating and summarizing data; normalizing, standardizing and concatenating data to create new regional or national data assets; and developing key performance indicators and benchmarks.
- Tyler may develop derivative data assets and insights based on aggregated, anonymized views of Client’s non-public data for the purposes of improvement and enhancement of the SaaS Services, aggregated statistical analysis, technical support and other internal business purposes.
- Tyler may access Client’s non-public data for the purposes of providing maintenance and support.
- The Documentation is licensed to you and may be used and copied by Client’s employees for internal, non-commercial reference purposes only.
- Client retains all ownership and intellectual property rights to the Client Data. Client expressly recognizes that except to the extent necessary to carry out Tyler’s obligations contained in this Agreement, Tyler does not create or endorse any Data used in connection with the SaaS Services. During the term of the Agreement, Client may export Client Data as allowed by the functionality within the SaaS Services.
- If Client provides feedback, information, and/or or suggestions about the SaaS Services, or any other services provided hereunder, then Tyler (and those it allows to use its technology) may use such feedback, information, and/or suggestions under a royalty-free, paid-up, and irrevocable license without obligation to Client.
- You may not: (a) except as explicitly provided for herein, make the SaaS Services available in any manner in a separate Instances of the Client’s Site, or make the Documentation resulting from the SaaS Services available in any manner to any third party for use in the third party’s business operations; (b) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the SaaS Services; (c) access or use the SaaS Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to us; (d) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the SaaS Services or Documentation available to any third party other than as expressly permitted by this Agreement; (e) use the SaaS Services to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third party rights; (f) interfere with or disrupt the integrity or performance of the SaaS Services (including without limitation, vulnerability scanning, penetration testing or other manual or automated simulations of adversarial actions, without Tyler’s prior written consent); or (g) attempt to gain unauthorized access to the SaaS Services or its related systems or networks. Provided however, nothing in this section shall restrict the Client from accepting data from third party agencies, or providing User accounts to third party agencies, provided that the third party agency complies with all aspects of this Agreement.
- Client acknowledges and understands that the SaaS Services are not designed to serve as the system of record and shall not be used in a manner where the interruption of the SaaS Services could cause personal injury (including death) or property damage. The SaaS Services are not designed to process or store data protected under the Family Education Rights and Privacy Act (“FERPA”), data from Criminal Justice Information Services (CJIS), or other sensitive data, and by using the SaaS Services, Client acknowledges and agrees that Client is using the SaaS Services at Client’s own risk and that Client is solely responsible for use of data with the SaaS Services in any manner that is contrary to the uses for which the SaaS Services are designed and offered for use in this Agreement. If Client intends on use the SaaS Services to store or transmit Protected Health Information (PHI), then the Client shall notify Tyler and the parties will enter into a mutually agreeable Business Associate Agreement.
Access and Usage by Internal Client Users and Contractors.
Client may allow Client’s internal users and third party contractors to access the SaaS Services and any technical or policy controls, in compliance with the terms of this Agreement, which access must be for Client’s sole benefit. Client is responsible for the compliance with this Agreement by Client’s internal users and contractors.
Customer (a) must keep its passwords secure and confidential; (b) is solely responsible for all activity occurring under its account; (c) must use commercially reasonable efforts to prevent unauthorized access to its account and notify Tyler promptly of any such unauthorized access; (d) may use the SaaS Services only in accordance with this Agreement and the Documentation; and (e) shall comply with all federal, state and local laws, regulations and policies of Customer, as to its use of the SaaS Services, Client Data, and instructions to Tyler regarding the same.
Data & Insights Products Client Support.
Tyler will provide Client support for the SaaS Service at the level indicated in the product description in the Order Form under the terms of Data & Insights Products Client Support Policy which is located at https://support.socrata.com/; Tyler will report scheduled maintenance windows, outages or other events affecting Client on the support site.
Customer Data Backup.
Customer is providing Tyler a copy of Customer Data. Any laws and regulations governing Customer for retention of Customer Data remains Customer’s responsibility. CUSTOMER IS SOLELY RESPONSIBLE FOR BACKING UP CUSTOMER DATA unless otherwise specifically agreed to in writing between Tyler and Customer.
Tyler will provide access to the applicable application-programming interface (“API”) as part of the SaaS Services under the terms of this Agreement. Subject to the other terms of this Agreement, Tyler grants Client a non-exclusive, nontransferable, terminable license to interact only with the SaaS Services as allowed by the current APIs.
- Client may not use the APIs in a manner--as reasonably determined by Tyler--that constitutes excessive or abusive usage, or fails to comply with any part of the APIs. If any of these occur, Tyler can suspend Client’s access to the APIs on a temporary basis and provide notice to the Client of the suspension. Tyler will restore the Client’s access upon the Client’s curing of such misuse. If the Client does not cure such misuse within thirty (30) days of receiving written notice from Tyler, Tyler may terminate the Client’s access to the API.
- Tyler may change or remove existing endpoints or fields in API results upon at least 30 days’ notice to Customer, but Tyler will use commercially reasonable efforts to support the previous version of the APIs for at least 6 months from deprecation notice. Tyler may add new endpoints or fields in API results without prior notice to Customer.
- The APIs may be used to connect the SaaS Services to certain hosted or on premise software applications not provided by Tyler (“Non-Tyler Applications”). Client is solely responsible for development, license, access to and support of Non-Tyler Applications, and Client’s obligations under this Agreement are not contingent on access to or availability of any Non-Tyler Application.
- Any open source code provided is provided as a convenience to you. Such open source code is provided AS IS and is governed by the applicable open source license that applies to such code; provided, however, that any such open source licenses will not materially interfere or prohibit Client’s limited right to use the SaaS Services for its internal business purposes.
Data Security Measures.
In order to protect Client’s Confidential Information, Tyler will: (a) implement and maintain all reasonable security measures appropriate to the nature of the Confidential Information including without limitation, technical, physical, administrative and organizational controls, and will maintain the confidentiality, security and integrity of such Confidential Information; (b) implement and maintain industry standard systems and procedures for detecting, mitigating, and responding to attacks, intrusions, or other systems failures and regularly test or otherwise monitor the effectiveness of the safeguards' key controls, systems, and procedures; (c) designate an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (d) identify reasonably foreseeable internal and external risks to the security, availability, confidentiality, and integrity of Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction or other compromise of such information, and assess the sufficiency of any safeguards in place to control these risks (collectively, Security Measures). Client acknowledges and agrees that Tyler’s obligations with respect to Security Measures is subject to Section B(4.2) above.
Notice of Data Breach.
If Tyler knows that Confidential Information has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, Tyler will alert Client of any such data breach in accordance with applicable law, and take such actions as may be necessary to preserve forensic evidence and return the SaaS Services to standard operability. If so required, Tyler will provide notice in accordance with applicable federal or State data breach notification laws.
Section C: Professional Services or Other Services
Professional Services or Other Services. If applicable, Tyler will provide Client the various implementation-related services itemized in the Order Form and described in the Statement of Work/our industry standard implementation plan. If Tyler is performing the Professional Services, Tyler will finalize the SOW, Quote or other implementation plan with the Client before Professional Services commence. For U.S. Government Licensees, all professional services fees shall be in accordance with the terms of the MAS contract. Unless otherwise agreed, during a Professional Services engagement Tyler or Authorized Reseller will submit monthly invoices to Client for Professional Services furnished. All Professional Services invoices are payable within thirty (30) days after invoice date.
Professional Services or Other Services Warranty.
Tyler will perform the implementation-related services in a professional manner, consistent with industry standards. In the event Tyler provides services that do not conform to this warranty, Tyler will re-perform such services at no additional cost to Client.
Site Access and Requirements.
At no cost to Tyler, Client agrees to provide Tyler with full and free access to Client’s personnel, facilities, and equipment as may be reasonably necessary for Tyler to provide implementation services, subject to any reasonable security protocols or other written policies provided to Tyler as of the Effective Date, and thereafter as mutually agreed to by Client and Tyler.
Client acknowledges that the implementation of the SaaS Services is a cooperative process requiring the time and resources of Client’s personnel. Client agrees to use all reasonable efforts to cooperate with and assist Tyler as may be reasonably required to meet the agreed upon project deadlines and other milestones for implementation. This cooperation includes at least working with Tyler to schedule the implementation-related services outlined in the SOW or Order Form. Tyler will not be liable for failure to meet any deadlines and milestones when such failure is due to Force Majeure or to the failure by Client’s personnel to provide such cooperation and assistance (either through action or omission).
Service Level Agreement (SLA) & Warranty.
- Service Warranty.
Tyler warrants to Client that the functionality or features of the SaaS Services will substantially perform as communicated to Client in writing, or their functional equivalent, but Tyler has the right to update functionality. The support policies may change but will not materially degrade during the term. Tyler may deprecate features upon at least 30 days’ notice to Customer, but Tyler will use commercially reasonable efforts to support the previous features for at least 6 months following the deprecation notice. The deprecation notice will be posted at https://support.socrata.com. Tyler will post Product Release Notes to the support site, which include a summary of recently released features and features planned for release within 30 days. The Client may subscribe to Product Release Notes located at https://support.socrata.com/hc/en-us/sections/203977877-Check-out-the-Latest for email delivery of Product Updates.
- Uptime Service Level Warranty.
Tyler will use commercially reasonable efforts to maintain the online availability of the SaaS Services for a minimum of availability in any given month as provided in the chart below (excluding maintenance scheduled downtime, outages beyond Tyler’s reasonable control, and outages that result from any issues caused by you, Client’s technology or Client’s suppliers or contractors, SaaS Services not in the production environment, Client is in breach of this Agreement, or Client has not pre-paid SaaS Fees for the Software as a Service in the month in which the failure occurred). This Uptime Service Level Warranty does not apply to any custom development provided to the Customer.
||3% of monthly fee for each full hour of an outage that adversely impacted Client’s access or use of the SaaS Services (beyond the warranty).
Maximum amount of the credit is 100% of the prorated SaaS Service Fees for such month, or $1,800.00, whichever is less, and the minimum credit cannot be less than $100.00.
- Limited Remedy.
Client’s exclusive remedy and Tyler’s sole obligation for Tyler’s failure to meet the warranty under Section C(5.2) is the provision by Tyler of the credit for the applicable month, as provided in the chart above (if this Agreement is not renewed then a refund in the amount of the credit owed); provided that Client notifies Tyler of such breach of the warranty within thirty (30) days of the end of that month.
Section D: Third-Party Services
Third -Party Services.
Client may be provided with access and usage of Third-Party Services through use of the SaaS Services. Client must agree to such Third-Party Service contracts if Client chooses to use those Third-Party Services. Customer will have access to the following Third-party Services for use within the software, however, the availability of any of these services is subject to change:
Getty Images: Within the platform’s perspective story tool, customers have access to a library of images available for use in their story pages, terms and conditions located at http://www.gettyimages.com/connectterms.
- Mapbox: Within the platform’s visualization suite, the current mapping visualizations are powered by Mapbox, terms and conditions located at https://www.mapbox.com/legal/tos.
- Mapquest: Geocoding provider that matches user-provided addresses with geographic coordinates for display on map visualizations terms and conditions located at http://hello.mapquest.com/terms-of-use/.
Client acknowledges that Tyler is not the provider of any Third-Party Services. Tyler does not warrant or guarantee the performance of the Third-Party Services.
Section E: SaaS Fees, Invoicing and Payment; Invoice Disputes
Unless, Client procures the SaaS Services or Professional Services through an Authorized Reseller, Client agrees to pay Tyler the SaaS Fees. Client’s SaaS Fees are provided for in the Order Form and are invoiced on an annual basis, beginning on the commencement of the SaaS Subscription as set forth in the Order Form.
- Invoicing and Payment.
Tyler or Authorized Reseller will invoice Client the SaaS Fees at the commencement of the initial subscription term. Fees for other professional services are invoiced monthly as incurred, or as agreed to in the Order From. Unless otherwise specified in the Order Form, the currency is US Dollars and payment for undisputed invoices is due within thirty (30) days of receipt of invoice. Unless expressly set forth in the Order Form, fees are exclusive of taxes and third-party reseller fees. In the case of Client purchasing directly from Tyler, Tyler’s electronic payment information is provided in the invoice sent to Client and any billing inquiries by Client should be directed Tyler’s Accounts Receivable Department at 1-800-772-2260 (press 2) or email:
In the event the Client procures the SaaS Services or Professional Services through an Authorized Reseller, such arrangement will be addressed at the individual delivery order level, subject to the terms and conditions of the contract the Client is using. For U.S Government Clients purchasing the SaaS Services off of the Multiple Award Schedule (MAS), all SaaS Fees shall be paid in accordance with the terms of the MAS contract and any delivery orders issued thereunder.
Except for U.S. Government Clients, Tyler reserves the right to suspend access to the SaaS Services if Client fails to pay the SaaS Fees in accordance with this Agreement. Tyler may also terminate this Agreement if Client does cure such failure to pay within forty-five (45) days of receiving written notice of Tyler’s intent to terminate.
- Invoice Disputes.
If Client believes any delivered item does not conform to the warranties in this Agreement, Client will provide Tyler with written notice within thirty (30) days of Client’s receipt of the applicable invoice. The written notice must contain reasonable detail of the issues Client contends are in dispute so that Tyler can confirm the issue and respond to Client’s notice with either a justification of the invoice, an adjustment to the invoice, or a proposal addressing the issues presented in Client’s notice. Tyler will work with Client as may be necessary to develop an action plan that outlines reasonable steps to be taken by each of Tyler to resolve any issues presented in Client’s notice. Client may withhold payment of the amount(s) actually in dispute, and only those amounts, until Tyler completes the action items outlined in the plan. If Tyler is unable to complete the action items outlined in the action plan because of Client’s failure to complete the items agreed to be done by you, then Client will remit full payment of the invoice. Tyler reserves the right to suspend delivery of all SaaS Services, including maintenance and support services, if Client fails to pay an invoice not disputed as described above within fifteen (15) days of notice of Tyler’s intent to do so. For U.S. Government Clients, any disputed invoice notifications shall be in accordance with the Prompt Payment Act.
Section F: Termination, and Suspension of SaaS Services
This Agreement may be terminated as set forth below. In the event of termination, Client will pay Tyler or Authorized Reseller for all undisputed fees and expenses related to the SaaS Services, products, and/or other services Client has received, or Tyler has incurred or delivered, prior to the effective date of termination. Termination shall not entitle Client to a refund of any amounts paid under this Agreement, except as otherwise specified herein. Disputed fees and expenses in all terminations other than Client’s termination for cause must have been submitted as invoice disputes in accordance with Section E(3).
- Failure to Pay SaaS Fees.
Except for U.S. Government Clients, Client acknowledges that continued access to the SaaS Services is contingent upon Client’s timely payment of SaaS Fees. If Client fails to timely pay the SaaS Fees, Tyler may discontinue Client’s access to the SaaS Services. Tyler may also terminate this Agreement if Client does not cure such failure to pay within forty-five (45) days of receiving written notice of Tyler’s intent to terminate.
- For Cause.
If either Party believes the other Party has materially breached this Agreement, that Party will invoke the Dispute Resolution clause set forth in Section H(4). Party alleging the breach may terminate this Agreement for cause in the event the other Party does not cure, or create a mutually agreeable action plan to address, a material breach of this Agreement within the thirty (30) day window set forth in Section H(4).
- 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.
- Lack of Appropriations.
If Client should not appropriate or otherwise make available funds sufficient to utilize the SaaS Services, Client may unilaterally terminate this Agreement upon thirty (30) days written notice to Tyler. Client will not be entitled to a refund or offset of previously paid, but unused SaaS Fees. Client agrees not to use termination for lack of appropriations as a substitute for termination for convenience.
- Fees for Termination without Cause during Initial Term.
If Client terminates this Agreement during the initial term for any reason other than cause, Force Majeure, or lack of appropriations, then Client shall provide 30 days written notice. Termination shall not entitle Client to a refund of any amounts paid under this Agreement and if Client terminates this Agreement during the initial term for any reason other than cause, Force Majeure, or lack of appropriations, or if Tyler terminates this Agreement during the initial term for Client’s failure to pay SaaS Fees, Client is responsible for 100% of the SaaS Fees through the date of termination, and unless the Client is a U.S. Government Client, Client shall pay Tyler the following early termination fees:
- if Client terminates during the first year of the initial term, Client is responsible for 100% of the SaaS Fees through the date of termination, plus 75% of the SaaS Fees then due for the remainder of the subscription term defined in the Order Form;
- if Client terminates during the second year of the initial term, 100% of the SaaS Fees through the date of termination plus 50% of the SaaS Fees then due for the remainder of the subscription term defined in the Order Form; and
- is Client terminates during the third year of the initial term, 100% of the SaaS Fees through the date of termination plus 25% of the SaaS Fees then due for the remainder of the subscription term defined in the Order Form.
- Trial Service.
Any no-cost trial service to which Client has access may be terminated at any time by either party with fifteen (15) days’ prior written notice.
- Return of Client Data.
Upon request, Tyler will make the SaaS Services available to Client to export Client Data for a period of sixty (60) days following the termination of this Agreement. After such sixty (60) day period has expired, Tyler has no obligation to maintain Client Data and will destroy the Client Data.
- Return of Tyler Property.
Upon termination of this Agreement, Client agrees to destroy or return all Tyler property and Documentation that is in Client’s possession. Upon Tyler’s request, Client will confirm Client’s compliance with this requirement in writing.
- Suspension of SaaS Services.
Although Tyler has no obligation to screen, edit or monitor the Client Data or Public User content posted on SaaS Services, if, in Tyler’s reasonable judgment, Tyler discovers Client’s use of the SaaS Services threatens the security, integrity, stability, or availability of the SaaS Services, or is otherwise in violation of this Agreement, Tyler may temporarily suspend the SaaS Services, or Users’ access thereto. Unless Client has conducted unscheduled penetration testing or unscheduled performance testing, Tyler will use commercially reasonable efforts to provide Client with notice and an opportunity to remedy such violation or threat prior to such suspension. Any unscheduled penetration testing or unscheduled performance testing conducted by Client will result in immediate suspension of the SaaS Services.
Section G: Indemnification, Limitation of Liability and Insurance
Intellectual Property Infringement Indemnification.
- Tyler will defend Client against any third party claim(s) that the SaaS Services 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 Tyler consents). Client must notify Tyler promptly in writing of the claim and the parties will cooperate over the defense or settlement of any such matter.
- Tyler’s obligations under this Section G(1) will not apply to the extent the claim or adverse final judgment is based on Client’s use of the SaaS Services in contradiction of this Agreement, including with non-licensed third parties, or Client’s willful infringement.
- If Tyler receives information concerning an infringement or misappropriation claim related to the SaaS Services, Tyler may at Tyler’s expense and without obligation to do so, either: (a) procure for Client the right to continue its use; (b) modify it to make it non-infringing; or (c) replace it with a functional equivalent, in which case Client will stop running the allegedly infringing Services immediately. Alternatively, Tyler may decide to litigate the claim to judgment, in which case Client may continue to use the SaaS Services consistent with the terms of this Agreement.
- If an infringement or misappropriation claim is fully litigated and Client’s use of the SaaS Services is enjoined by a court of competent jurisdiction, in addition to paying any adverse final judgment (or settlement to which Tyler consents), Tyler will, at Tyler’s option, either: (a) procure the right to continue its use; (b) modify it to make it non-infringing; or (c) replace it with a functional equivalent. This section provides Client’s exclusive remedy for third party copyright, patent, or trademark infringement and trade secret misappropriation claims.
- General Indemnification.
- Tyler will indemnify and hold harmless Client and Client’s agents, officials, and employees from and against any and all third party claims, losses, liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for personal injury or property damage to the extent caused by Tyler’s gross negligence or willful misconduct or a law applicable to Tyler’s performance under this Agreement. Client must notify Tyler promptly in writing of the claim and the parties will cooperate over the defense or settlement of any such matter.
- Except for U.S. Government Clients, and to the extent permitted by applicable law, Client will indemnify and hold harmless Tyler and its agents, officials, and employees from and against any and all third party claims, losses, liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for personal injury or property damage, to the extent caused by Client’s negligence or willful misconduct; or Client’s violation of a law applicable to Client’s performance under this Agreement. Tyler will notify Client promptly in writing of the claim and will give Client sole control over its defense or settlement. Tyler agrees to provide Client with reasonable assistance, cooperation, and information in defending the claim at Client’s expense.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TYLER HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. WHILE TYLER TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SAAS SERVICES, TYLER DOES NOT GUARANTEE THE SAAS SERVICES CANNOT BE COMPROMISED AND THEY ARE PROVIDED “AS IS”. CLIENT UNDERSTANDS THAT THE SAAS SERVICES MAY NOT BE ERROR FREE, AND USE MAY BE INTERUPTED.
- LIMITATION OF LIABILITY.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, TYLER’S 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 CLIENT’S ACTUAL DIRECT DAMAGES, NOT TO EXCEED THE THEN-CURRENT ANNUAL SAAS FEES PAYABLE BY YOU. 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 G(1) AND G(2). FAR 52.212-4 (p) is hereby incorporated by reference and is applicable only to licenses to the U.S. Government Licensee.
- EXCLUSION OF CERTAIN DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TYLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF TYLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
During the course of performing services under this Agreement, Tyler agrees to maintain the following levels of insurance: (a) Commercial General Liability of at least $1,000,000; (b) Automobile Liability of at least $1,000,000; (c) Professional Liability of at least $1,000,000; (d) Workers Compensation complying with applicable statutory requirements; and (e) Excess/Umbrella Liability of at least $5,000,000. Tyler will provide Client with copies of certificates of insurance upon Client’s written request.
Section H: General Terms and Conditions
For U.S. Government Clients, the SaaS Services and Documentation are developed exclusively at private expense and are a “commercial item,” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government Clients and End Users acquire only those rights in the SaaS Services and the Documentation that are provided under this Agreement. Use, duplication, and disclosure by civilian agencies of the U.S. Government shall be in accordance with FAR 52.227-19 (c) or other agency data rights provisions, as may be applicable. Use, duplication and disclosure by DOD agencies is subject solely to the terms of standard software License Agreement as stated in DFARS 227.7202. "Unpublished-All rights reserved under the Copyright Laws of the United States".
- Additional Products and Services.
If additional work is required, or if Client uses or requests additional services, Tyler will provide Client with an addendum or change order, as applicable, outlining the costs for the additional work. Unless otherwise noted therein, the price quotes in the addendum or change order will be valid for thirty (30) days from the date of the quote. The terms of this Agreement will control any such additional purchase(s), unless otherwise specifically provided in the amendment.
- Optional Items.
Unless otherwise indicated, pricing for any listed optional products and services in the Order Form will be valid for twelve (12) months from the Effective Date.
- Dispute Resolution.
Client agrees to provide Tyler with written notice within thirty (30) days of becoming aware of a dispute. Client agrees to cooperate with Tyler 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 Tyler’s 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 parties fail to resolve the dispute, then the parties shall participate in non-binding mediation in an effort to resolve the dispute. If the dispute remains unresolved after mediation, then either of the parties may assert their respective rights and remedies in a court of competent jurisdiction. Nothing in this section shall prevent Client or Tyler from seeking necessary injunctive relief during the dispute resolution procedures. For U.S. Government Clients, the aforementioned clause shall not apply to awards under the Multiple Award Schedule contract and for U.S. Government Clients, and Dispute that cannot be resolved by the parties will be subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to this Agreement to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this Agreement shall be a dispute to be resolved in accordance with the FAR Disputes clause at 48 C.F.R. 52.233-1, which is incorporated by reference.
The fees in the Order Form do not include any taxes, including, without limitation, sales, use, or excise tax. If Client is a tax-exempt entity, you agree to provide Tyler with a tax-exempt certificate. Otherwise, Tyler will pay all applicable taxes to the proper authorities and you will reimburse Tyler for such taxes. If you have a valid direct-pay permit, you agree to provide Tyler with a copy. For clarity, Tyler is responsible for paying Tyler’s income taxes, both federal and state, as applicable, arising from Tyler’s performance of this Agreement. Notwithstanding the foregoing, this Section H(5) shall not apply to U.S. Government Clients purchasing the SaaS Services or Professional Services under the MAS 70 Contract.
Tyler will not discriminate against any person employed or applying for employment concerning the performance of Tyler’s responsibilities under this Agreement. This discrimination prohibition will apply to all matters of initial employment, tenure, and terms of employment, or otherwise with respect to any matter directly or indirectly relating to employment concerning race, color, religion, national origin, age, sex, sexual orientation, ancestry, disability that is unrelated to the individual's ability to perform the duties of a particular job or position, height, weight, marital status, or political affiliation. Tyler will post, where appropriate, all notices related to nondiscrimination as may be required by applicable law.
Tyler has complied, and will comply, with the E-Verify procedures administered by the U.S. Citizenship and Immigration Services Verification Division for all of Tyler’s employees assigned to Client’s project.
Tyler will not subcontract any services under this Agreement without Client’s prior written consent, not to be unreasonably withheld.
- Binding Effect; No Assignment.
This Agreement shall be binding on, and shall be for the benefit of, either Client’s or Tyler’s successor(s) or permitted assign(s). Neither party may assign this Agreement without the prior written consent of the other party; provided, however, Client’s consent is not required for an assignment by Tyler as a result of a corporate reorganization, merger, acquisition, or purchase of substantially all of Tyler’s assets.
- Force Majeure.
Except for Client’s 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.
- 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.
- Entire Agreement; Amendment.
This Agreement and its Exhibits represent the entire agreement between you and Tyler with respect to the subject matter hereof, and supersedes any prior agreements, understandings, and representations, whether written, oral, expressed, implied, or statutory. Except for U.S. Government Clients, and in the case of Tyler is the Prime Contractor, Purchase Orders submitted by Client, if any, are for Client’s 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 by a written amendment signed by an authorized representative of each party.
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.
- 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.
- Independent Contractor.
Tyler is an independent contractor for all purposes under this Agreement.
All notices or communications required or permitted as a part of this Agreement, such as notice of an alleged material breach for a termination for cause or a dispute that must be submitted to dispute resolution, must be in writing and will be deemed delivered upon the earlier of the following: (a) actual receipt by the receiving party; (b) upon receipt by sender of a certified mail, return receipt signed by an employee or agent of the receiving party; (c) upon receipt by sender of proof of email delivery; or (d) if not actually received, five (5) days after deposit with the United States Postal Service authorized mail center with proper postage (certified mail, return receipt requested) affixed and addressed to the other party. Notices for Tyler shall be set to the address set forth in this section. Notices to the Client shall be sent to the address set forth on the Order Form, 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.
Address for Notices: Tyler Technologies, Inc., One Tyler Drive, Yarmouth, ME 04096, Attention: Chief Legal Officer. With a copy to: Tyler's Data & Insights, 1517 12th Ave., Suite 101, Seattle, WA 98122, Attention: Franklin Williams
- Client Lists.
Client agrees that Tyler may identify Client by name in client or client lists, marketing presentations, and promotional materials. Additionally, Tyler may release routine past performance information (PPI) regarding work and services performed by Tyler under any prime contract or subcontract for the purposes of responding to proposals for new work. PPI will not require approval from Client. Furthermore, Client will allow Tyler to use its name, including the name of any related project for which the SaaS Services will be used to support, in a press release relating to the SaaS Services, and Professional Services hereunder. Tyler shall allow Client to review, modify, and authorize, as reasonably necessary, such press release prior to its publication.
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 (“Confidential Information”). 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:
- 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;
- a party can establish by reasonable proof was in that party's possession at the time of initial disclosure;
- a party receives from a third party who has a right to disclose it to the receiving party; or
- 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 Tyler prompt notice and otherwise perform the functions required by applicable law.
- Business License.
In the event a local business license is required for Tyler to perform services hereunder, you will promptly notify Tyler and provide Tyler with the necessary paperwork and/or contact information so that Tyler may timely obtain such license.
- Governing Law.
This Agreement will be governed by and construed in accordance with the laws of Client’s state, without regard to its rules on conflicts of law, or in the case of a U.S. Government Client, this Agreement will be governed by and construed in accordance with the applicable federal laws of the United States without regard to any conflicts of law provisions.
- Order of Precedence.
Any ambiguity, conflict, or inconsistency in this Agreement shall be resolved with this Agreement taking precedence over the Exhibits to the Agreement. For contracts issued by the US Government, the order of precedence shall be in accordance with FAR 15.406-3(b) unless otherwise stated in the order issued by the US Government.