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HomeMy WebLinkAboutExhibit - AgreementSAAS SUBSCRIPTION AGREEMENT Yardi Systems, Inc., a California corporation headquartered at 430 South Fairview Avenue, Goleta, CA 93117 ("Verdi"), and City of Miami, with offices at 444 SW 2nd Ave, 3rd Floor, Miami, FL 33130-1910 ("Client" or "GSA Customer") enter into this agreement (this "Agreement") effective as of the date executed below ("Effective Date"). RECITAL Yardi has developed certain application software for use by its clients in the real property and asset management industry. Yardi application software is available only in the Yardi Cloud [defined in section 1 (Definitions), below]. Client desires to access the Yardi Cloud to use such Yardi software pursuant to this Agreement's terms. In consideration of their respective rights and obligations as set forth in this Agreement, the parties agree as follows: AGREEMENT 1. Definitions. a. "Anniversary Date" means the date that is 365 days after the Initiation Date, and each anniversary thereafter of the date that is 365 days after the Initiation Date, during this Agreement's Term. b. "Internal Purposes" means accessing the Yardi Cloud to use the Licensed Programs and Yardi Cloud Ser- vices for Client's property management and accounting, and related business purposes. c. "Client Data" means the data that Designated Users transmit and/or enter into the database provided as part of the Yardi Cloud in connection with their Use of the Licensed Pro- grams pursuant to this Agreement. d. "Contractor" means a contractor who: (I) has an In- dependent Consultant Network License Agreement with Yardi; and (ii) is a current member in good standing of Yardi's Independent Consultant Network. e. "Deliverable" means any deliverable or intellectual property delivered to Client as part of Programming Services [defined in section 14 (Programming Services)] or other ser- vices provided pursuant to this Agreement, f. "Designated User" or "DU" means a Client em- ployee, Contractors, or independent contractor designated by Client to access the Yardi Cloud and Use the Yardi Cloud Services and Licensed Programs for Internal Purposes. g. "Effective Date" means the date of the last party sig- nature on this Agreement. h. "Fees" means the fees identified in an applicable GSA Customer Purchase Order ("Order") due under this Agree- ment. "Force Majeure Event" means any event beyond the reasonable control of the party affected by such event, includ- ing such as acts of God, or the public enemy, acts of Govern- ment in its sovereign or contractual capacity, fires, floods, ep- idemics, quarantine restrictions, strikes, unusually severe weather and delays of common carriers. j. "Initiation Date" means the date that is 2 weeks after the Effective Date. k. "Licensed Programs" means the software pro- gram(s) identified in an applicable Order. 1. "Licensed Programs Documentation" means the user manuals and documentation for the Licensed Programs. m, "Password" means the unique user name and pass- word assigned by Client to each Designated User as more fully described in section 6 (Users and Passwords). n. "POC(s)" means the person(s) Client identifies to Yardi as point(s) of contact for application support services and other account management purposes. o. "Use" means authorized access to the licensed soft- ware in the Yardi Cloud and use of the Licensed Programs and Licensed Program Documentation by Designated Users solely for Internal Purposes. p. 'Yardi Cloud" means the hardware, software, stor- age, flrewalls, intrusion detection devices, load balancing units, switches and other hardware that make up the Yardi Cloud. q. "Verdi Cloud Services" means installation, mainte- nance and service of the hardware and software comprising the Yardi Cloud, 2. License Grant Restrictions; Access to Yardi Cloud. a. Licenses. Yardi grants to Client a non-excluslve, non- transferable (except as expressly provided in this Agreement), limited license for Designated Users to: (i) access the Yardi Cloud and Use the Licensed Programs and Yardi Cloud Ser- vices solely for Internal Purposes; and (ii) access the Licensed Programs Documentation and other content on Yardi's Client Central website solely for Internal Purposes and subject to the terms of use then presented on Client Central. In the event of any conflicts between the terms of this Agreement and the terms of use then presented on Client Central, the terms of this Agreement shall control. For the avoidance of doubt, the parties acknowledge that an individual Designated User shall be bound by the terms of use then presented on Client Central to the extent such terms of use do not conflict with this Agree- ment; provided, however, that it is acknowledged that an indi- vidual Designated User may not have the authority to bind the Client to the terms of use then -presented on Client Central. b. Restrictions. Client may only exercise the license granted in section 2(a) (Licenses) through its Designated Us- ers. Client may not rent, lease, sell, transfer (by sublicense, assignment or otherwise except as expressly provided by this Agreement), time share, modify, reproduce, copy, make de- rivative works from, distribute, publish, use to provide service bureau services, or publicly display the Licensed Programs. Client may only Use the Licensed Programs for Internal Pur- Yardi Client Page 1 of 12 Preparation Date: May 29, 2015 5:20 PM poses. Client may not reverse engineer, decompiie or other- wise attempt to discover the source code for the Licensed Pro- grams. Client may not permit any person or entity to breach the restrictions in this section 2(b) (Restrictions). Client may not copy or re-create the Licensed Programs or its objects without Yardi's prior express written consent. Client agrees that the Licensed Programs must remain at all times in the Yard( Cloud, and may not be removed or copied to any other location at any time, c. Access to the Yardi Cloud. Yardi will use commer- cially reasonable efforts to make the Yardi Cloud and the Li- censed Programs accessible to Designated Users 24-hours per day, 7 days per week, excluding down time for mainte- nance and repair. Yardi has standing maintenance/re- pair/backup hours from 11:00 pm (local time at the data cen- ter) each day to 1:00 am (local time at the data center) each succeeding day, and an additional 2 hours for the mainte- nance/repair/backup hours beginning at 11:00 pm (local time at the data center) each Saturday night [i,e., the Saturday - night -to -Sunday -morning standing maintenance/re- pair/backup hours extend an extra 2 hours until 3:00 am (local time at the data center) each succeeding Sunday]. Yardi will use commercially reasonable efforts to provide as much no- tice to Client as reasonably possible under the circumstances for emergency maintenance/repair downtime outside the aforementioned standing hours. 3. Term and Termination. a. Term. This Agreement will commence on the Effective Date and shall remain in full force until Client's 3rd Anniversary Date (the "Initial Term") unless earlier terminated in accord with section 3(b) (Termination). b. Termination. When the end user is an instrumentality of the U.S., recourse against the United States for any alleged breach of this Agreement must be made as a dispute under the contract Disputes Clause (Contract Disputes Act). During any dispute under the Disputes Clause, Yardi shall proceed diligently with performance of this contract, pending final res- olution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Con- tracting Officer. When the end user is not an instrumentality of the U.S., a party may terminate upon providing the other party written notice of the material breach and a reasonable time to cure given the nature of the breach and industry prac- tices and standards for cure of such a breach. c. Effect of Termination. Upon the effective date of this Agreement's termination or expiration: (i) the license for the Licensed Programs and Licensed Programs Documentation will terminate; (ii) Client will cease Use of the Yardi Cloud, Yardi Cloud Services, Licensed Programs and Licensed Pro- grams Documentation; and (iii) Client's access to the Yardi Cloud and Licensed Programs will be disabled. d. Survival. The parties' obligations under, and the pro- visions of, sections 4 (License Fees), 8(b) (Limited Liability for Unauthorized Client Data Access), 9 (Confidentiality), 10 (Warranties), 11 (Damage Limitations), 13 (Indemnification), 15 (Assignment) and 18 (General Provisions) shall survive this Agreement's termination or expiration. 4. License Fees. a. Fees. Client agrees to pay Yardi the Fees in accord- ance with the payment terms set forth in an applicable Order and the underlying GSA Schedule Contract. b. Taxes. Taxes are subject to FAR 52.212-4(k) which provides that the contract price shall include all federal, state and local taxes and duties. Yard! shall state separately on its invoices, taxes excluded from the fees, and the GSA Customer agrees to either pay the amount of the taxes (based on the current value of the equipment or services) to Yardi or provide it evidence necessary to sustain an exemption, in accordance with FAR 52.229-1 and FAR 52.229-3. 5. Implementation and Training. a. Third Party Software and Hardware Requirements. Client is solely responsible for purchasing, installing and maintaining, at Client's expense, any third party software and hardware necessary for Designated Users to access the Yardi Cloud and Use the Licensed Programs and Yardi Cloud Ser- vices. Yardi shall not be liable for any such third party software or hardware, and Client acknowledges and agrees that any assistance provided by Yardi in connection with such third party software and hardware shall not alter Client's responsi- bility or Yardi's liability disclaimer under this section 5(a) (Third Party Software & Hardware Requirements). b. Location. Implementation and training services may (at Client's election) take place at a location specified by Cli- ent, subject to Government security requirements or via tele- communications as specified in a new or modified Order. Yardi will make commercially reasonable efforts to timely ac- commodate Client's request. Additional on -site implementa- tion/training services are subject to the execution of a new or modified Order based on the fees set forth in the GSA Sched- ule Pricellst. c. On -Sites. Client acknowledges that in -person imple- mentation/training service visits at a Client location require a minimum visit of 8 hours per visit. Client acknowledges that training services for more than 12 Client trainees require Cli- ent to order 1 additional Yardi trainer for each 12 Client train- ees in excess of 12. d. Data Conversion. Client must order electronic data conversion services, pursuant to the execution of a new or modified Order. Absent an agreement to the contrary, Client shall otherwise be solely responsible for data conversion, data preparation, data entry and data verification, and any post conversion clean-up. e. Testing. Client shall have 90 days commencing upon the Effective Date (the "Testing Period") to test the Licensed Programs, Yardi Cloud and Yardi Cloud Services. At any time during the Testing Period, Client may elect to cease Use of the Licensed Programs, Yardi Cloud and Yardi Cloud Ser- vices and cancel this Agreement, in which event Yardi will re- fund to Client all amounts paid by Client to Yardi pursuant to this Agreement less reasonable amounts [determined by ref- erence to the Fees/rates indicated In Schedule A (Fee Sched- ule)] for initial set-up, implementation, training and support of the Licensed Programs, Yardi Cloud and Yardi Cloud Ser- vices provided prior to Client's notice of cancellation pursuant to this section 5(e) (Testing). 6. Users and Passwords. a. Designated Users. Client agrees that its exercise of the license granted by this Agreement shall only be through its Designated Users. Client's license to access and Use the Yardi Cloud and Licensed Programs is limited as provided in an applicable Order. Each Designated User must have a unique Password. Yardi Client Page 2 of 12 Preparation Date: May 29, 2015 5:20 PM b. Password Assignment. Client's application support POC(s) will be Designated Users, will designate the other Designated Users, and will provide each other Designated User with a Password. Each Password shall be personal and unique to the applicable Designated User, and may not be used by anyone other than such Designated User. Each Password may only be used from 1 computer at any given time, Client shall be responsible for maintaining Designated User Password security. c. Client Obligations with Respect to Designated Us- ers. Client shall inform each Designated User of this Agree- ment's terms and restrictions and shall enforce such re- strictions, Client agrees to notify Yardi if Client becomes aware of any failure of a Designated User to adhere to the license terms and restrictions in this Agreement. 7. Application Support & Upgrades. a. Application Support Service. Yardi will provide ap- plication support and upgrades for the Licensed Programs as set forth in this section 7 (Application Support & Upgrades). b. Client Contacts. Client agrees to appoint application support POC(s). Client may change the application support POC(s) upon advance written notice to Yardi. Yardi shall have no obligation to contact, or communicate with, anyone regard- ing application support and maintenance issues except Cli- ent's application support POC(s). Client acknowledges that it is Client's responsibility to keep Client's application support POC(s) current, and to notify Yardi of any changes, c. Yardi Contacts. During initial implementation, Yardi shall appoint an account manager to Client's account, After initial implementation, Yardi will either assign Client to an ac- count manager or an application support team. Yardi may change the identity of individual account managers from time to time upon notice to Client. Client's application support rec- ords relating to Client will be available to Yardi's entire appli- cation support team at all times. d. Application Support Services. Yardi shall provide application support for the Licensed Programs through its ac- count managers and technical staff to Client's application sup- port POC(s). Application support does not include on -site in- stallation, implementation, training, or testing of the Licensed Programs, nor does it include data conversion, Those ser- vices, are available subject to the execution of a new or mod- ified Order, Yardi's application support service team will use commercially reasonable efforts to address and solve Client's issues, but cannot guarantee satisfaction in every case. e. Total Hours Included. Client's annual application support allotment is specified in an applicable Order. f. Application Support Hours. Yardi's application sup- port hours are from 6:00 am to 5:00 pm (Pacific Time) Monday through Friday (excluding federal holidays). g. Priority. (I) Yardi shall have the right to prioritize application support requests according to the application support issue's impact on Client. Yardi will prioritize application support re- quests in the following order: Priority 1: Business halted (total inability to perform normal operation) • Client will submit support requests by telephone to Yardi's application support number. • Response as rapid as reasonably feasible — gener- ally within 2 business hours. Priority 2: Business impacted (severe restriction of Client's Use of the Licensed Programs — a potentially critical problem) • Client will submit support requests by telephone to Yardi's application support number. • Prompt response subject only to delays for priority 1 issues, generally within 4 business hours, Priority 3: Non -critical service requests (any issue that is not a Priority 1 or Priority 2 issue) • Client will submit support request by telecommuni- cations to Yardi application support. • Response subject to delays for priority 1 and 2 is- sues, generally within 1 business day. (ii) Yardi will work on Priority 1 and 2 issues with con- tinuous focus, and with Client's cooperation, through resolu- tion. h. Standard Term. Application support services are sub- ject to this Agreement's terms. i. Obsolescence. Yardi reserves the right to cease providing application support services for the Licensed Pro- grams on the later of: (I) 3 years from the date on which Yardi ceases to license the Licensed Programs; or (ii) 5 years from the Effective Date, Yardi agrees to notify Client if and when Yardi will cease application support services in accord with this section 7(i) (Obsolescence). 8. Client Data. a. Client Data Storage. Subject to Force Majeure Events as defined in FAR 52.212-4(f), Yardi agrees to store Client Data on a database server in the Yardi Cloud. b. Limited Liability for Unauthorized Client Data Ac- cess. Yardi agrees to use: (i) firewalls and other technology generally used in the trade to prevent unauthorized 3rd party access to its computer systems storing Client Data; and (li) encryption technology generally used in the trade to pre- vent unauthorized 3rd party access to Client Data transmis- sions. Notwithstanding the foregoing, Yardi shall not be liable to Client in the event that: (A) its use of firewalls and other technology generally used in the trade falls to prevent unau- thorized third party access to Client Data; or (B) its use of en- cryption technology generally used in the trade fails to prevent unauthorized third party access to Client Data transmissions. Nothing in this section 8(b) (Limited Liability for Unauthorized Client Data Access) shall constitute a representation or war- ranty by Yardi that Client Data storage or transmission will be inaccessible to unauthorized third parties. 9. Confidentiality. a. Confidential Information Definition. "Confidential Information" means all technical and non -technical infor- mation including: (i) Client Data; (ii) patent, copyright, trade secret, and other proprietary information; (iii) inventions, know-how, processes, or algorithms; (iv) software programs, software source documents, object code, source code, data- base dictionaries, network diagrams, UML diagrams, Li- censed Programs, Licensed Programs Documentation, Li- censed Programs schema, Licensed Programs functions, Li- censed Programs user interface screens, SSIS, data ware- house schema, cube specifications and configuration, the re- ports generated by the Licensed Programs, Yardi Cloud spec- ifications and configuration, Yardi Cloud hardware specifica- Yardi Client Page 3of12 Preparation Date: May 29, 2015 5:20 PM tions and configuration, and Yardi Cloud Services; (v) devel- opment, design details and specifications; (vi) a party's finan- cial information(excluding the prices stated in the GSA Sched- ule Pricelist); (vii) customer lists, business forecasts, sales and marketing plans and information; (vill) SSAE16 audit re- ports and PCI DSS attestations of compliance and any infor- mation related to SSAE16 audit reports and/or PCI DSS at- testations of compliance; and (ix) any other information dis- closed by a party, or to which a party is exposed because of this Agreement, that the disclosing party identifies as confi- dential at the time of disclosure. b. Nondisclosure and Nonuse Obligations. Each party (the "Receiving Party") agrees that it will not dissemi- nate, distribute, expose, or in any way disclose any Confiden- tial Information of the other party (the "Disclosing Party") to any third party. The Receiving Party may use the Disclosing Party's Confidential Information to the extent necessary to perform its obligations under this Agreement. The Receiving Party's employees, independent contractors, or Contractors (collectively "Personnel") may use Confidential Information only for the specific internal purpose for which it was made available and not for any other purpose. The Receiving Party's Personnel may not use Confidential Information in any way that may compete with Disclosing Party. The Receiving Party may not disclose Confidential Information to its Person- nel for the purpose of enabling any such Personnel to service, maintain, or modify the Licensed Programs, The Receiving Party agrees that it will treat all Confidential Information with the same degree of care as the Receiving Party accords its own Confidential Information, but in no event less than rea- sonable care. The Receiving Party agrees that it shall disclose Confidential Information only to those of its Personnel who need to know such information, and the Receiving Party cer- tifies that such Personnel have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions applicable to the Receiving Party under this Agreement. The Receiving Party shall immediately give notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party's Confidential Information. The Receiving Party agrees to assist the Disclosing Party in remedying any such unauthorized Use or disclosure of Disclosing Party's Confidential Information. When the end user is an instrumentality of the U.S. Govern- ment, neither this Agreement nor the Schedule Pricelist shall be deemed "Confidential Information" notwithstanding mark- ing to that effect. Notwithstanding anything in this Agreement to the contrary, the GSA Customer may retain such Confiden- tial Information as required by law, regulation or its bona fide document retention procedures for legal, regulatory, or com- pliance purposes; provided, however, that such retained Con- fidential Information will continue to be subject to the confi- dentiality obligations of this Agreement. c. Exclusions from Nondisclosure and Nonuse Obli- gations. The Receiving Party's obligations per section 9(b) (Nondisclosure and Nonuse Obligations) shall not apply to Confidential Information that the Receiving Party can docu- ment: (i) was (through no fault of the Receiving Party) in the public domain at or subsequent to the time the Disclosing Party disclosed the information to the Receiving Party; (ii) was rightfully in the Receiving Party's possession free of any con- fidentiality obligation at or subsequent to the time the Disclos- ing Party disclosed it to the Receiving Party; or (it) was devel- oped by the Receiving Party's Personnel independent of, and without reference to, any Information communicated to the Receiving Party by the Disclosing Party. A Confidential Infor- mation disclosure by the Receiving Party either: (A) in re- sponse to an enforceable order by a court or other govern- mental body; (B) as otherwise required by federal law; or (C) necessary to establish the rights of either party under this Agreement, shall not be a breach of this Agreement by the Receiving Party or a waiver of confidentiality for other pur- poses; provided, however, the Receiving Party shall provide prompt prior written notice of any such Confidential Infor- mation disclosure to the Disclosing Party (to the extent al- lowed by applicable federal law) to enable the Disclosing Party to seek a protective order or otherwise prevent such dis- closure, d. Ownership and Return of Confidential Information and Other Materials. The Disclosing Party's Confidential In- formation is and shall remain the Disclosing Party's property, and this Agreement does not grant or imply any license or other rights to the Disclosing Party's Confidential Information except as expressly set forth in this Agreement. Within 5 busi- ness days after the Disclosing Party's request, the Receiving Party will promptly either (at the Disclosing Party's election) destroy or deliver to the Disclosing Party all Confidential Infor- mation and materials fumished to the Receiving Party, and the Receiving Party agrees to provide a written repre- sentative's certification of the Receiving Party's compliance with the foregoing obligation. e. Third Party Information Disclosure. The Disclosing Party shall not communicate any information to the Receiving Party in violation of the proprietary rights of any third party. 10. Warranties. a. Limited Software Warranty. Yardi warrants that the. Licensed Programs will perform substantially as specified in the Licensed Program Documentation. Yardi does not warrant that the Licensed Programs will meet Client's requirements and expectations. b. Remedy for Limited Software Warranty Breach. If Yardi breaches the warranty set forth in section 10(a) (Limited Software Warranty), Yardi agrees to use commercially rea- sonable efforts to modify the Licensed Programs so that the Licensed Programs conform to that warranty. If such modifi- cation is not commercially reasonable, then Yardi will notify Client and Client may terminate this Agreement. In the event Client terminates this Agreement per this section 10(b) (Rem- edy for Limited Software Warranty Breach), Yardi will refund to Client, on a pro-rata basis, the annual Fees paid by Client to Yardi within the year prior to the effective date of Client's termination. THE FOREGOING REMEDY IS CLIENT'S SOLE REMEDY IN THE EVENT OF A BREACH OF THE WAR- RANTY SET FORTH IN SECTION 10(a) (Limited Software Warranty). c. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE FULL- EST EXTENT ALLOWED UNDER APPLICABLE LAW, YARDI DISCLAIMS ALL EXPRESS, IMPLIED AND STATU- TORY WARRANTIES WITH REGARD TO THE LICENSED PROGRAMS INCLUDING, BUT NOT LIMITED TO, THE IM- PLIED WARRANTIES OF MERCHANTABILITY AND FIT- NESS FOR A PARTICULAR PURPOSE. d. Internet Performance Disclaimer. Yardi does not and cannot control the flow of data via the Internet. Such flow de- pends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or in- actions of such third parties can impair or disrupt the Internet, Yardi will use commercially reasonable efforts to remedy and avoid such events, but cannot guarantee that such events will Yardi Client Page 4 of 12 Preparation Date: May 29, 2015 5:20 PM not occur. Accordingly, Yardi disclaims any liability resulting from or relating to such events. 11. Damage Limitations. a, Damage Waiver. REGARDLESS OF ANY OTHER PROVISION IN THIS AGREEMENT, AND TO THE FULL- EST EXTENT ALLOWED BY APPLICABLE LAW, YARDI DISCLAIMS ALL OBLIGATIONS AND LIABILITIES FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNI- TIVE AND CONSEQUENTIAL DAMAGES, ATTORNEYS' AND EXPERTS' FEES, AND COURT COSTS (EVEN IF YARDI HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. b. Liability Limit. IN ADDITION TO THE LIMITA- TIONS OTHERWISE SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED BY APPLI- CABLE LAW, CLIENT AGREES THAT IN THE EVENT OF ANY CLAIM OR CAUSE OF ACTION BY CLIENT ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT, YARDI'S MAXIMUM LIABILITY TO CLIENT, REGARD- LESS OF THE AMOUNT OF LOSS CLIENT MAY HAVE SUFFERED, SHALL NOT EXCEED THE FEES PAID BY CLIENT TO YARDI PURSUANT TO THIS AGREEMENT WITHIN THE YEAR PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING EXCLUSION/LIMI- TATION OF LIABILITY SHALL NOT APPLY (1) TO PER- SONAL INJURY OR DEATH CAUSED BY YARDI'S NEG- LIGENCE; (2) FOR FRAUD; OR (3) FOR ANY OTHER MATTER FOR WHICH LIABILITY CANNOT BE EX- CLUDED BY LAW. 12. Ownership. a. Yardi's Ownership. Client agrees that, as between Yardi and Client, Yardi is and shall remain the sole and exclu- sive owner of all right, title and interest in and to the Licensed Programs, Deliverables, Yardi Cloud, Yardi Cloud Services, and Licensed Program Documentation, and to all intellectual property rights in the foregoing. The only rights Client obtains in the Licensed Programs, Deliverables, Yardi Cloud, Yardi Cloud Services, and Licensed Program Documentation are the licenses expressly granted to Client in this Agreement. b. Client's Ownership. Yardi agrees that, as between Yardi and Client, Client is and shall remain the sole and ex- clusive owner of all right, title and Interest in and to Client Data. 13. Indemnification. a. Indemnity. Yardi agrees to indemnify and hold Client harmless from and against any third party claims, actions or demands alleging that Client's Use of the Yardi Cloud, Yardi Cloud Services, Licensed Programs, Licensed Program Doc- umentation, and Deliverables in accordance with this Agree- ment's terms infringes on a third party's proprietary infor- mation, trademark, copyright, patent rights or intellectual property rights, or misappropriates a third party's trade se- crets b. Indemnity Conditions. Yardi's defense and indemni- fication obligation per section 13(a) (Indemnity) is conditioned upon the following: (i) Client providing Yardi with prompt writ- ten notice of any claim for which indemnification is sought; (ii) Client providing Yardi with an opportunity to defend or inter- vene in any litigation at its own expense, through counsel of its choosing and (iii) Yardi's reasonable cooperation with the Govemment in the defense and settlement of the claim. Noth- ing contained herein shall be construed in derogation of the U.S. Department of Justice's right to defend any claim or ac- tion brought against the U.S., pursuant to its jurisdictional statute 28 U.S.C, § 516. Yardi may defend the Client to the extent not prohibited by 28 U.S.C. § 516. c. Order Against Continued Use. If the Licensed Pro- grams become the subject of a patent, trademark, copyright, or trade secret misappropriation or infringement claim, and such claim results — or Is reasonably likely to result — in a final order against Client's continued Use of the Licensed Pro- grams, Yardi will: (i) replace or modify the Licensed Programs to avoid the misappropriation/infringement claim; (ii) work with the Government to secure Client's right to continue Use of the Licensed Programs; or (iii) if neither (I) or (ii) is commercially practicable, either party may terminate this Agreement upon written notice to the other party. 14. Programming Services. a. Programming Services. Yardi provides program- ming services including, without limitation, database customi- zations, user interface customizations, database reports, da- tabase scripts and other programming services (collectively, "Programming Services") pursuant to the execution of a new or modified Order. b. Programming Services Terms. The Fees for Pro- gramming Services, if initially ordered, are set forth in an ap- plicable Order based on the GSA Schedule Pricelist. Client will otherwise initiate Programming Service requests by exe- cuting a new or modified Order. c. Deliverables License. ,Yardi grants to Client a non- exclusive, non -transferable (except as expressly provided in this Agreement), limited license for Designated Users to Use the Deliverables in connection with their Use of the Licensed Programs, Yardi Cloud and Yardi Cloud Services. 15. Assignment. a. Assignment Limitation. Except for the exceptions specified in section 15(b) (the "Permitted Exceptions"), Cli- ent shall not (either directly or indirectly) assign, sell, convey, pledge, or otherwise transfer this Agreement without first ob- taining Yardi's express written consent, which Yardi shall not unreasonably withhold. Except for the Permitted Exceptions, any attempted assignment made without Yardi's prior ex- press written consent is void. Assignment by Yardi is subject to FAR 52.232-23 "Assignment of Claims" (Jan. 1986) and FAR subpart 42.12 "Novation and Change -of -Name Agree- ments" (Sep, 2013). 16. Outsourcing. a. Server Location. Yardi reserves the right to locate the servers and other equipment needed to provide the Yardi Cloud either at its facilities or at the facilities of independent service providers. Except as otherwise agreed to in an appli- cable Order, Yardi may change the location of the servers and other equipment needed to provide the Yardi Cloud at any time during this Agreement's Term; provided that any such change of location shall not affect Yardi's obligations under this Agreement and shall not interrupt Client's access to the Yardi Cloud, Client Data, Yardi Cloud Services, and the Li- censed Programs. 18. General Provisions. a, No Agency Relationship. Nothing in this Agree- ment is intended to make the parties partners, agents, joint venturers, or any other form of joint enterprise, or to make the Personnel or representatives of one of the parties Into Per- sonnel or representatives of the other party. No party to this Yardi Client Page S of 12 Preparation Date: May 29, 2015 5:20 PM Agreement shall have any express or implied right or authority to assume or create any obligations on behalf of the other party or to bind the other party to any contract, agreement, or undertaking with any third party. b. Governing Law. This Agreement shall be governed and determined by the Federal laws of the United States. c. Venue. Jurisdiction and venue shall be determined by the applicable federal statute. d. Binding Effect. This Agreement is binding on and In- ures to the benefit of the parties and their permitted assigns, successors, and legal representatives. e. Notices. (i) The parties shall deliver any notice required by this Agreement by personal delivery, certified U.S. Mail return re- ceipt requested, or established, reputable expedited delivery carrier providing proof of delivery service, and will be deemed given upon confirmed delivery to the party to whom it is in- tended at its record address. The record addresses of the par- ties are set forth in an applicable Order, (II) Either party may change its record address by giving writ- ten notice of such change to the other party. f. Waiver. The waiver of a party's breach of this Agree- ment shall not operate or be construed as a waiver of any other or subsequent breach. g, Severabiiity. If a court or other body of competent Ju- risdiction determines that any part of this Agreement is unen- forceable, the remainder of this Agreement shall nevertheless remain enforceable. h. Headings. This Agreement's section headings and captions are inserted for convenience only and are not In- tended to form a material part of this Agreement. i. Data Use. Yardi may aggregate, compile, and use Cli- ent Data in order to Improve, develop or enhance the Licensed Programs and/or other services offered, or to be offered, by Verdi; provided that no Client Data is identifiable as originating from, or can be traced back to, Client or a Client customer, tenant or resident in such aggregated form. j. Entire Agreement. This Agreement, the underlying GSA Schedule Contract, the Schedule Pricelist and any ap- plicable Orders constitute the final, complete, and exclusive statement of the agreement between the parties pertaining to this Agreement's subject matter and supersede all prior and contemporaneous understandings or agreements of the par- ties. This Agreement, however shall not take precedence over the terms of the underlying GSA Schedule Contract or any specific, negotiated terms on the GSA Customer's Pur- chase Order. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty except those inducements, representations and warranties expressly set forth in this Agreement. k. Non-Solicit/Non-Hire. The parties agree not to solicit (other than a general solicitation to the public) the employ- ment of, engage as an independent contractor, or hire, any employee of the other party while such person is an employee of the other party and until such person has not been an em- ployee of the other party for 6 months. I. Modification. The parties may only modify or amend this Agreement by a writing signed by both parties. m. Force Majeure. Pursuant to FAR 52.212-4(f), the parties shall be liable for default unless nonperformance is caused by an occurrence beyond Its reasonable control and without its fault or negligence such as acts of God, or the pub- lic enemy, acts of Government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather and delays of common car- riers. The party claiming a force majeure event shall notify the Contracting Officer in writing as soon as it is reasonably pos- sible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence. n. Signature; Counterparts, Both parties' signatures need not appear on the same copy of this Agreement, so long as both signed copies have identical contents. The parties may transmit signatures on this Agreement by electronic transmission, which shall be binding upon the parties, Coun- terparts with original signatures shall be provided to the other party within 5 days of electronic transmission; however, the failure to provide the original counterpart shall have no effect on this Agreement's enforceability or binding nature. If exe- cuted in counterparts, this Agreement will be as effective as if simultaneously executed. [Signature Page Follows] Yardi Client Page 6 of 12 Preparation Date: May 29, 2015 5:20 PM CITY OF MIAMI, a municipal corporation ("Client") By: Print Name: Title: Date: Attest: Todd Hannon, City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe, Director of Risk Management APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez, City Attorney YARDI SYSTEMS, INC, ("Yardi") By: Print Name: Title: Date: Yardi Client Page 7 of 12 Preparation Date: May 29, 2015 5:20 PM GSA: Voyager for Government GSA: Construction SCHEDULE A Fee Schedule ectAn uia Unit of Measure (UOM) DU DU Yardi Pin #: 100027360 Yardi Order#: 80968 Count $/UOM Total Price 8 $2,327.46 3 $775.82 Total Annual Fee UOM Count $/UOM GSA: Implementation/Training Hour 336 $189.41 Travel Expenses Estimate 1 $10,800.00 GSA: Start -Up Fees Voyager for Government DU 8 $232.75 Annual Fees<w».»,.�»».,,�„x,>»>,FA,»»�,,�..»»»»,»,�»�F.�»..»,m.. One -Time Fees Sub -Total Sales Tax $18,619.68 $2,327.46 $20,947.14 Total Price $63,641.76 $10,800.00 $1,862.00 Total One -Time Fee $76,303.76 Net Price $20,947,14 $76,303,76 $97,250.90 Tax Exempt Total Due $97,250.90 PAYMENT TERMS: $86,450.90 (100% of non -Travel Expenses) payable upon execution of this Agreement. TRAVEL EXPENSES PAYMENT TERMS: Yardi shall invoice Client for an estimate of $10,800.00 for Travel Expenses monthly in arrears, and Client shall pay such invoices within 30 days of the invoice date. Additional terms are set forth in Schedules B (Yardi SAAS Subscription Services and Governance Schedule) and C (Additional Terns) to this Agreement. Yardi acknowledges that Client is subject to the provisions of the Public Records provisions and restrictions present in Chapter 119, Flor- ida Statutes. Upon receipt of a proper request for a release of public records, Client shall promptly notify Yardi in writing of any Yardi Confidential Information that may be subject to any such request so that Yardi may take such steps as it deems necessary to protect such Confidential Information from disclosure. This Agreement shall be governed and determined by the laws of the United States and, if applicable, the laws of the State of Florida as such laws are applied to agreements made and performed entirely in the State of Florida. The record addresses of the parties are as follows: As to Client: City of Miami 444 SW 2'd Avenue, 3rd floor Miami, FL 33130 Attn: Director of the Department of Real Estate and Asset Management Yardi Client Page 8 of 12 Preparation Date: May 29, 2015 5:20 PM With a copy to: City of Miami 444 SW 2"d Avenue, Suite 945 Miami, FL 33130 Attn: City Attomey City of Miami 444 SW 2" Avenue, 6th floor Miami, FL 33130 Attn: Director of Procurement As to Yardi: Attn: Chief Operating Officer YARDI SYSTEMS, INC. 430 S. Fairview Ave. Goleta, CA 93117 With a copy to: Attn: Legal Department YARDI SYSTEMS, INC. 430 S. Fairview Ave. Goleta, CA 93117 Yardi Client Page 9 of 12 Preparation Date: May 29, 2015 5:20 PM SCHEDULE B Yardi SaaS Subscription Services and Governance Schedule Yardi Cloud and Client Access Yardi will allow Client access to the Yardi Cloud via the following methods, 1. Via Internet URL to access and operate the Licensed Programs. 2, Via remote desktop to access the following, depending on operating requirements: a. The Licensed Programs' reports path for management of the Licensed Programs support files; b. A database -level query tool; c. Reporting -writing software, if applicable (third -party software licensing not included); d. Client -server -based system administration tools provided by Yardi. Yardi Cloud Services Yardi will provide the following Yardi Cloud Services as they relate to the Yardi Cloud: 1. Installation, maintenance (deployment of Microsoft patches and upgrades) and licensing of Microsoft Operating System; 2. Installation, maintenance (deployment of Microsoft patches and upgrades) and licensing of Microsoft SQLServer; 3. Installation, maintenance (deployment of Yardi patches and upgrades) and licensing of the Licensed Programs; Yardi Cloud Data and File Management Yardi will provide data and file management services per the following guidelines. 1. Yardi will provide Client one live and one test database for the Licensed Programs. Client may purchase additional data- bases at Yardi's then -current prevailing rate for additional databases orwebshares at the time of Client's request. 2. Yardi will provide up to 1TB of Combined Storage at no additional charge. "Combined Storage" means: (I) Client Data file storage on file servers separate from the database server used to serve Client Data; (ii) Client Data storage held within database servers and utilized by the Licensed Programs; and (iii) any other digital storage required by Client's Use of the Yardi Cloud and Licensed Programs In accord with this. Agreement. Client may purchase additional Combined Storage at Yardi's then -current prevailing rate for additional Combined Storage at the time of Client's request. 3. Subject to Force Majeure Events, Yardi will execute: a. Nightly backups of Client's live database to a backup server; b. Nightly backups of Client's live database and the reports path to a backup server; and c. Near -real-time replication of the database and default path to a separate, off -site disaster recovery location. 4. Database backup files will be maintained for 14 days on a server accessible by Client via secure transfer server (i.e., at any given time, the last 14 nightly database backups will be on the secure transfer server) from which Client may retrieve the database backups at any time. Licensed Programs Support and Governance of Use Yardi will provide consulting and technical support for the Licensed Programs per the following guidelines. 1. Implementation, consulting and support of the Licensed Programs and the Licensed Programs' deployed components, where applicable; 2. Yardi will periodically make available to Client (at no additional cost to Client) updates, upgrades and current versions of the Licensed Programs which will include corrections, enhancements, and/or improvements. Client reserves the right to refuse updates and upgrades of the Licensed Programs; provided, however, that Yardi reserves the right to cease applica- tion support services for versions of the Licensed Programs more than 2 years older than the latest version of the Licensed Programs generally released to Yardi's clients. Annual Fees Include Client's Annual Fees include access to the Yardi Cloud, Licensed Programs license Fees, Licensed Programs updates/upgrades, up to 1 Remote Administrative DU (defined below), and 42 Licensed Programs application support hours/year. Client's Annual Fees also include 25 additional application support hours for the first year (i.e., until Client's first Anniversary Date) only. Yardi will debit all application support services (in'/e-hour increments with a'/, -hour minimum) against Client's above -noted application support allotment except when related to a Software Error. "Software Error" means a reproducible failure of the Licensed Programs to materially perform as specified in the Licensed Programs Documentation. Client acknowledges that data preparation and post conversion data clean-up is inherent in any data conversion, and such additional efforts associated with a Client data conversion — if performed by Yardi - will be debited against Client's application support service allotment. Notwithstanding the multi -year Term set forth in section 3(a) (Term), Client's annual Fees and Included annual application support allotment apply for annual periods ending on each Anniversary Date, and shall not include unused application support time from prior annual periods. If Client needs additional application support hours at any time, Client may purchase additional hours at Yardi's then -current prevailing application support rate at the time Client needs the hours. "Remote Administrative DU" means a Designated User utilizing remote access technology to access the Yardi Cloud, Licensed Programs, and/or Client Data for system administrative purposes on behalf of Client. Yardi's Remote Administrative DU change Fee is $100/change. Yardi Client Page 10 of 12 Preparation Date: May 29, 2015 5:20 PM SCHEDULE C Additional Terms Additional terms for products/modules licensed in Schedule A (Fee Schedule): GSA: Voyager for Government includes: GL/AP, Maintenance/Work Orders, WIPS 2. Walk -In Rent Collection/Rent Payment Services (WIPST'9 terns: a. Client acknowledges and agrees to pay all fees and other charges, including any statement, service, chargeback, application, rejection, return, reversal, refund, debit or other fee imposed by a processing institution, correspond- ent bank, merchant bank or other Institution In connection with the authorization, processing and settlement of Client's Transactions. b. Client acknowledges and agrees that it must do one of the following: (I) utilize a banking institution that is sup- ported by Verdi; (ii) secure the agreement of Client's banking institution to work with Yardi in interfacing WIPS with Client's banking institution (in which case reasonable time will be necessary to complete the interface in light of the interface requirements); or (iii) sign-up for, and utilize, ProfitStars' banking institution processing services. c. Client acknowledges and understands that CheckFreePay is a third party vendor and licensed money transmitter and is solely responsible for its network of agents (the "Agents"). Client further acknowledges and understands that among various other unrelated business transactions: (I) Agents accept cash -only rent payments from WIPS tenants in exchange for a nominal convenience fee (for purposes of this Agreement, each cash payment remitted by a tenant through WIPS, less the Agent's convenience fee, is referred to as a "Payment"); and (ii) Yardi does not collect rent directly from any tenant through WIPS and has no control over the Agents or CheckFreePay's Agent network. d. Client acknowledges and understands that the tenant, not the Agent, determines how much rent to pay using WIPS. Because the Agent will accept whatever cash sum the tenant desires to pay and will charge a convenience fee each time a payment is made, the Payment(s) made by a tenant to the Agent may be less than, equal to, or greater than the total rent due. Accordingly, Client acknowledges and understands that the rent payment subse- quently reflected in Voyager and ultimately credited to Client's account may be an under- or over -payment of the tenant's rent. Except to the extent such under- or over -payment is caused solely by Yardi's negligence or willful misconduct, Client expressly acknowledges and agrees that the payment of rent Is a matter between Client and tenant and Client agrees to defend, indemnify and hold Yardi harmless from and against any third party (including tenant) claims relating to or arising out of the use of WIPS. e. Typically, Voyager will reflect each Payment within 1 business day and each Payment will be credited to Client's designated account within 3 business days. Because delays may arise from time to time, these are targets and not guarantees; however, so long as Client has provided all necessary and correct Payment Processing infor- mation to enable Yardi to properly facilitate the routing of Payments from the Agent to the Client, Yardi has the appropriate guarantees from CheckFreePay that CheckFreePay will promptly and accurately deliver to Client all Payments made using WIPS. f. Client expressly acknowledges and agrees to the following Office of Foreign Asset Control (OFAC) obligations: i. Client shall not use WIPS, or allow WIPS to be used, for any purpose other than the payment of rent and related charges by tenants who physically occupy the dwelling for which the rent payment or related charges apply. ii. Client shall at all times comply with all OFAC requirements and fulfill all OFAC responsibilities that apply to Client concerning the administration and enforcement of economic and trade sanctions against targeted foreign states, organizations, and individuals, including providing any information to Yardi that is reason- ably necessary for Yardi to fulfill Its obligations under OFAC, if any. iii. If at any time Client discovers or reasonably believes a tenant, employee or organization on the Specially Designated Nationals and Blocked Persons List, published from time to time by OFAC (the "OFAC List"), is using WIPS for any reason, Client shall immediately notify Yardi and cooperate fully with any subse- quent investigation or request for information that may be required in connection with complying with OFAC requirements and all other applicable laws and regulations. iv. Except to the extent an OFAC violation arises solely as a result of Yardi's gross negligence or willful misconduct, Client agrees to defend, indemnify and hold Yardi and its parent, subsidiaries, directors, of- ficers, agents, representatives, and employees harmless from all claims, losses, penalties and other lia- bilities relating to or arising out of any acts or omissions by Client and its parent, subsidiaries, directors, officers, agents, representatives, tenants or employees that give rise to an OFAC violation. g. Terms Applicable If Client Uses Yardi's Master Merchant Account with WIPS Transactions. If Client utilizes Yardi's Master Merchant Account with ProfitStars for WIPS Transactions, Client acknowledges and agrees that: (i) Client may only process tenant rent payment WIPS Transactions through Yardi's Master Merchant Account with ProfitStars; and (ii) Client agrees that Yardi may satisfy reimbursement for any fees and other charges, including any statement, service, chargeback, application, rejection, retum, reversal, refund, debit or other fee imposed by a processing institution, correspondent bank, merchant bank or other institution in connection with the authorization, processing and settlement of Client's WIPS Transactions from subsequent deposits to the cor- responding bank account. Implementation/Training Details: 1. GSA: Implementation/Training—Client agrees to pay for all reasonable expenses in accord with section 5(c) (On -Sites). At any time, Client may purchase additional implementation/training hours at Yardi's then -current prevailing implementa- tion/training rate, plus reasonable expenses in accord with section 5(c) (On -Sites). Yardi Client Page 11 of 12 Preparation Date: May 29, 2015 5:20 PM Other Terms: 1. Client acknowledges that additional DUs and Licensed Programs [i.e., in addition to those initially set forth in Schedule A (Fee Schedule)] require additional Fees at Yardi's then -current prevailing rate for the additional DUs or Licensed Programs at the time of Client's request. Subject to: (1) at least 5 business days prior written notice from Client; (ii) Client's execution of an amendment to this Agreement; and (iii) subject to payment of additional Fees, Yardi will increase Client's licensed maximum number of Designated Users. Yardi Client Page 12 of 12 Preparation Date: May 29, 2015 5:20 PM