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HomeMy WebLinkAboutECHDA19-015 Yardi Page 1 of 11 Confidential Preparation Date: July 15, 2019 4:49 PM SAAS SUBSCRIPTION AGREEMENT Yardi Systems, Inc., a California corporation headquartered at 430 South Fairview Avenue, Goleta, CA 93117 (“Yardi”), and Eagle County Housing & Development Authority (“Client”) PO Box 850 Eagle, CO 81631 enter into this agreement including any schedules, exhibits or other attachments (this “Agreement”) effective as of the Effective Date [defined in section 1 (Definitions), below]. 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. “Business Purposes” means accessing the Yardi Cloud to use the Licensed Programs and Yardi Cloud Services for Client’s property management and accounting, and related business pur- poses. c. “Client Data” means the data that Designated Users trans- mit and/or enter into the database provided as part of the Yardi Cloud in connection with their Use of the Licensed Programs pur- suant to this Agreement. d. “Contractor” means a contractor who: (i) has an Independ- ent Consultant Network License Agreement with Yardi; and (ii) is a current member in good standing of Yardi’s Independent Consult- ant Network. e. “Deliverable” means any deliverable or intellectual prop- erty delivered to Client as part of Programming Services [defined in section 14 (Programming Services)] or other services provided pursuant to this Agreement. f. “Designated User” or “DU” means a Client employee or Contractor designated by Client to access the Yardi Cloud and Use the Yardi Cloud Services and Licensed Programs for Business Pur- poses. g. “Effective Date” means the date of the last party signature on this Agreement. h. “Fees” means the fees identified in Schedule A (Fee Schedule), and any other fees that may become due under this Agreement. i. “Force Majeure Event” means any event beyond the rea- sonable control of the party affected by such event, including with- out limitation fire, storm, weather, earthquake, explosion, casualty, strike, war, riot, civil disturbance, act of God, acts or omission of any third-party, any state or national law, decree or ordinance, or any executive or judicial order, which event causes a party to delay or fail to perform under this Agreement. j. “Initiation Date” means the first day of the month immedi- ately following that date which is two weeks after the Effective Date. k. “Licensed Programs” means the software program(s) identified in Schedule A (Fee Schedule). l. “Licensed Programs Documentation” means the user manuals and documentation for the Licensed Programs. m. “Password” means the unique user name and password assigned by Client to each Designated User as more fully de- scribed 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 ac- count management purposes. o. “Undisputed Fees” means all Fees due from Client under this Agreement which Client does not reasonably and in good faith dispute - and provide notice of such dispute in accord with section 18(f) (Notices) - within 30 days of invoice. p. "Use" means authorized access to the licensed software in the Yardi Cloud and use of the Licensed Programs and Licensed Programs Documentation by Designated Users solely for Business Purposes. q. “Yardi Cloud” means the hardware, software, storage, fire- walls, intrusion detection devices, load balancing units, switches and other hardware that make up the Yardi Cloud. r. “Yardi Cloud Services” means installation, maintenance 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-exclusive, non- transferable (except as expressly provided in this Agreement), lim- ited license for Designated Users to: (i) access the Yardi Cloud and Use the Licensed Programs and Yardi Cloud Services solely for Business Purposes; and (ii) access the Licensed Programs Docu- mentation and other content on Yardi’s Client Central website solely for Business Purposes and subject 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 Users. Client may not rent, lease, sell, transfer (by sublicense, assignment or other- wise except as expressly provided by this Agreement), time share, modify, reproduce, copy, make derivative works from, distribute, publish, use to provide service bureau services, or publicly display the Licensed Programs. Client may only Use the Licensed Pro- grams for Business Purposes. Client may not reverse engineer, de- compile or otherwise attempt to discover the source code for the DocuSign Envelope ID: 09D96903-06C4-425B-A579-4C1CC0F60E2A Page 2 of 11 Confidential Preparation Date: July 15, 2019 4:49 PM Licensed Programs. 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 Li- censed Programs must remain at all times in the Yardi Cloud, and may not be removed or copied to any other location at any time. Client acknowledges and agrees that Client may not perform scans or electronic testing of any kind on the Yardi Cloud, Licensed Pro- grams, Yardi’s corporate networks, and Yardi’s corporate servers including, without limitation, vulnerability scanning or testing, pen- etration scanning or testing or any other type of scanning or testing of the Yardi Cloud, Licensed Programs, Yardi’s corporate net- works, and Yardi’s corporate servers. c. Access to the Yardi Cloud. Yardi will use commercially reasonable efforts to make the Yardi Cloud and the Licensed Pro- grams accessible to Designated Users 24-hours per day, 7 days per week, excluding down time for maintenance and repair. Yardi has standing maintenance/repair/backup hours from 11:00 pm (lo- cal time at the data center) each day to 1:00 am (local time at the data center) each succeeding day, and an additional 2 hours for the maintenance/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/repair/backup hours extend an extra 2 hours until 3:00 am (local time at the data center) each succeeding Sunday]. Yardi will use commercially rea- sonable efforts to provide as much notice to Client as reasonably possible under the circumstances for emergency maintenance/re- pair 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 first Anniversary Date (the “Initial Term”) unless earlier terminated in accord with section 3(c) (Termination for Cause). Upon expiration of the Initial Term, this Agreement shall automatically renew for successive 3- year terms (each a “Renewal Term”) unless a party provides writ- ten notice of non-renewal at least 30 days prior to expiration of the then-current (Initial or Renewal) Term. The Initial Term and Re- newal Term(s) shall be collectively referred to as the “Term.” b. Termination for Convenience. Client may terminate this Agreement without cause and for its convenience upon 30 calendar days’ prior written notice. Upon a termination for convenience, Cli- ent shall promptly pay any Undisputed Fees owed to Yardi as of the effective date of Client’s termination. If Client terminates this Agreement pursuant to this section 3(b) (Termination for Conven- ience), Client shall not be entitled to a refund of any Fees. c. Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within 7 days of written notice of a material breach, or if the breach- ing party cannot reasonably cure the material breach within 7 days, the breaching party fails to initiate cure within 7 days and fails to continuously and diligently work to cure the breach until the breach is cured. Termination pursuant to this section 3(c) (Termination for Cause) shall be effective upon delivery of written notice after expi- ration of the applicable cure period. d. Effect of Termination. Upon the effective date of this Agreement’s termination or expiration: (i) the license for the Li- censed Programs and Licensed Programs Documentation will ter- minate; (ii) Client will cease Use of the Yardi Cloud, Yardi Cloud Services, Licensed Programs and Licensed Programs Documen- tation; (iii) Client’s access to the Yardi Cloud and Licensed Pro- grams will be disabled; and (iv) Client shall pay any Undisputed Fees to Yardi. e. Survival. The parties’ obligations under, and the provisions of, sections 4 (License Fees), 8(b) (Limited Liability for Unauthor- ized 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 accordance with the payment terms set forth in Schedule A (Fee Schedule). b. Failure to Pay. Client’s failure to timely pay any Undis- puted Fee when due is a material breach subject to the terms of section 3(c) (Termination for Cause). Additionally, Undisputed Fees shall accrue interest from their due date until paid at the rate of 1.5% per month or the maximum rate allowed under applicable law whichever is less. c. Taxes. The Fees are exclusive of any tariff, duty, or tax, however designated, levied, or based including, without limitation, any taxes based on: (i) this Agreement; (ii) the Licensed Programs, Yardi Cloud, Yardi Cloud Services, or Deliverables; (iii) Client's Use of the Yardi Cloud, Yardi Cloud Services, or Licensed Programs; (iv) the Licensed Programs Documentation; or (v) any materials or supplies furnished by Yardi per this Agreement. Client is responsi- ble for all applicable tariffs, duties or taxes (exclusive of taxes based on Yardi's net income) applicable to this Agreement. d. Partial Fee Disputes. If Client reasonably and in good faith disputes any Fees, and provides notice in accord with section 18(f) (Notices) of such dispute, Client agrees that any undisputed portion of such Fees are Undisputed Fees and Client agrees to timely pay any such Undisputed Fees. 5. Implementation and Training. a. Third-Party Software and Hardware Requirements. Cli- ent is solely responsible for purchasing, installing and maintaining, at Client’s expense, any third-party software and hardware neces- sary for Designated Users to access the Yardi Cloud and Use the Licensed Programs and Yardi Cloud Services. 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 responsibility 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 Client or via telecommunications. Yardi will bill Client for initial implementa- tion/training services as indicated in Schedule A (Fee Schedule). Client may request additional on-site implementation/training ser- vices [i.e., in addition to the on-site implementation/training ser- vices set forth in Schedule A (Fee Schedule)] at any time and Yardi will make commercially reasonable efforts to timely accommodate Client's request. Additional on-site implementation/training ser- vices are subject to the parties’ mutual agreement on: (i) the sched- ule for performance of the additional services; and (ii) Yardi’s Fees for the additional services. Client acknowledges and agrees that no recording of any sort (whether audio, visual, or otherwise) of Yardi Implementation/Training services is allowed under this Agreement or otherwise. c. On-Sites. Client acknowledges that in-person implementa- tion/training service visits at a Client location require a minimum visit of 8 hours per visit. Client agrees to pay all reasonable ex- penses associated with on-site visits including, but not limited to, travel to and from the site, lodging, meals, etc. Client acknowledges that training services for more than 12 Client trainees require Client to pay for 1 additional Yardi trainer for each 12 Client trainees in excess of 12. Client agrees that Client must pay for any implemen- tation/training services cancelled less than 10 business days prior DocuSign Envelope ID: 09D96903-06C4-425B-A579-4C1CC0F60E2A Page 3 of 11 Confidential Preparation Date: July 15, 2019 4:49 PM to their scheduled date. d. Data Conversion. Yardi will bill Client for electronic data conversion services, if initially ordered, at the rate stated in Sched- ule A (Fee Schedule). 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-conver- sion clean-up. Additional Yardi data conversion services [i.e., in ad- dition to any initial data conversion services set forth in Schedule A (Fee Schedule)] are subject to the parties’ mutual agreement on: (i) the schedule for performance of the additional services; and (ii) Yardi’s Fees for the additional services. e. Testing. Client shall have 90 days commencing upon the Effective Date (the "Testing Period") to test the Licensed Pro- grams, 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 Services and cancel this Agreement, in which event Yardi will refund to Client all amounts paid by Client to Yardi pursuant to this Agreement less reasonable amounts [determined by reference to the Fees/rates indicated in Schedule A (Fee Schedule)] for initial set-up, implementation, train- ing and support of the Licensed Programs, Yardi Cloud and Yardi Cloud Services provided prior to Client’s notice of cancellation pur- suant 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 Desig- nated Users. Client’s license to access and Use the Yardi Cloud and Licensed Programs is limited as provided in Schedule A (Fee Schedule). Each Designated User must have a unique Password. b. Password Assignment. Client’s application support POC(s) will be Designated Users, will designate the other Desig- nated Users, and will provide each other Designated User with a Password. Each Password shall be personal and unique to the ap- plicable 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 Users. Client shall inform each Designated User of this Agreement’s terms and restrictions and shall enforce such restrictions. Client agrees to notify Yardi if Client becomes aware of any failure of a Desig- nated User to adhere to the license terms and restrictions in this Agreement. 7. Application Support & Upgrades. a. Application Support Service. Yardi will provide applica- tion 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 sup- port 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 regarding application sup- port and maintenance issues except Client’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 imple- mentation, Yardi will either assign Client to an account manager or an application support team. Yardi may change the identity of indi- vidual account managers from time to time upon notice to Client. Client’s application support records relating to Client will be availa- ble to Yardi’s entire application support team at all times. d. Application Support Services. Yardi shall provide appli- cation support for the Licensed Programs through its account man- agers and technical staff to Client’s application support POC(s). Application support does not include on-site installation, implemen- tation, training, or testing of the Licensed Programs, nor does it in- clude data conversion. Those services, if initially ordered, are spec- ified in Schedule A (Fee Schedule). Yardi’s application support ser- vice 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 Schedule B (Yardi SaaS Subscription Ser- vices and Governance Schedule). f. Application Support Hours. Yardi’s application support hours are from 6:00 am to 5:00 pm (Pacific Time) Monday through Friday (excluding holidays). g. Priority. (i) Yardi shall have the right to prioritize application support requests according to the application support issue’s impact on Cli- ent. Yardi will prioritize application support requests in the following order: Priority 1: Business halted (total inability to perform normal opera- tion)  Client will submit support requests by telephone to Yardi’s application support number.  Response as rapid as reasonably feasible – generally 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 is- sues, generally within 4 business hours. Priority 3: Non-critical service requests (any issue that is not a Pri- ority 1 or Priority 2 issue)  Client will submit support request by telecommunications to Yardi application support.  Response subject to delays for priority 1 and 2 issues, generally within 1 business day. (ii) Yardi will work on Priority 1 and 2 issues with continuous focus, and with Client’s cooperation, through resolution. h. Standard Term. Application support services are subject to this Agreement’s terms and timely payment of all Undisputed Fees. Subject to the section 3(c) (Termination for Cause) notice and cure provisions, Yardi may suspend application support ser- vices if Client fails to timely make any Undisputed Fee payment. i. Obsolescence. Yardi reserves the right to cease providing application support services for the Licensed Programs 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 sup- port services in accord with this section 7(i) (Obsolescence). 8. Client Data. a. Client Data Storage. Subject to Force Majeure Events, Yardi agrees to store Client Data on a virtual database server in the Yardi Cloud. b. Limited Liability for Unauthorized Client Data Access. DocuSign Envelope ID: 09D96903-06C4-425B-A579-4C1CC0F60E2A Page 4 of 11 Confidential Preparation Date: July 15, 2019 4:49 PM Yardi agrees to use: (i) firewalls and other technology generally used in the trade to prevent unauthorized third-party access to its computer systems storing Client Data; and (ii) encryption technol- ogy generally used in the trade to prevent unauthorized third-party access to Client Data transmissions. Notwithstanding the forego- ing, Yardi shall not be liable to Client in the event that: (A) its use of firewalls and other technology generally used in the trade fails to prevent unauthorized third-party access to Client Data; or (B) its use of encryption technology generally used in the trade fails to prevent unauthorized third-party access to Client Data transmis- sions. Nothing in this section 8(b) (Limited Liability for Unauthorized Client Data Access) shall constitute a representation or warranty by Yardi that Client Data storage or transmission will be inaccessi- ble to unauthorized third parties. 9. Confidentiality. a. Confidential Information Definition. “Confidential Infor- mation” means all technical and non-technical information includ- ing: (i) Client Data; (ii) patent, copyright, trade secret, and other proprietary information; (iii) inventions, know-how, processes, or al- gorithms; (iv) software programs, software source documents, ob- ject code, source code, database dictionaries, network diagrams, UML diagrams, Licensed Programs, Licensed Programs Docu- mentation, Licensed Programs schema, Licensed Programs func- tions, Licensed Programs user interface screens, SSIS, data ware- house schema, cube specifications and configuration, the reports generated by the Licensed Programs, Yardi Cloud specifications and configuration, Yardi Cloud hardware specifications and config- uration, and Yardi Cloud Services; (v) development, design details and specifications; (vi) a party’s financial information; (vii) customer lists, business forecasts, sales and marketing plans and infor- mation; (viii) the prices offered or paid per this Agreement for Yardi’s products and services; (ix) SSAE18 audit reports and PCI DSS attestations of compliance and any information related to SSAE18 audit reports and/or PCI DSS attestations of compliance; (x) this Agreement’s terms; and (xi) any other information disclosed by a party, or to which a party is exposed because of this Agree- ment, that the disclosing party identifies as confidential at the time of disclosure or which – by its nature - reasonably should be re- garded as confidential. b. Nondisclosure and Nonuse Obligations. Each party (the “Receiving Party”) agrees that it will not disseminate, distribute, expose, or in any way disclose any Confidential Information of the other party (the “Disclosing Party”) to any third-party. The Receiv- ing Party may use the Disclosing Party’s Confidential Information to the extent necessary to perform its obligations under this Agree- ment. The Receiving Party’s employees and Contractors may use Confidential Information only for the specific business purpose for which it was made available and not for any other purpose. The Receiving Party’s employees and Contractors may not use Confi- dential Information in any way that may compete with Disclosing Party. The Receiving Party may not disclose Confidential Infor- mation to its employees and Contractors for the purpose of ena- bling any such employees or Contractors 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 reasonable care. The Receiving Party agrees that it shall disclose Confidential Information only to those of its employees and Contractors who need to know such infor- mation, and the Receiving Party certifies that such employees and Contractors have previously agreed, either as a condition to em- ployment 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. c. Exclusions from Nondisclosure and Nonuse Obliga- tions. The Receiving Party’s obligations per section 9(b) (Nondis- closure and Nonuse Obligations) shall not apply to Confidential In- formation that the Receiving Party can document: (i) was (through no fault of the Receiving Party) in the public domain at or subse- quent to the time the Disclosing Party disclosed the information to the Receiving Party; (ii) was rightfully in the Receiving Party’s pos- session free of any confidentiality obligation at or subsequent to the time the Disclosing Party disclosed it to the Receiving Party; or (iii) was developed by the Receiving Party’s employees or agents independent of, and without reference to, any information commu- nicated to the Receiving Party by the Disclosing Party. A Confiden- tial Information disclosure by the Receiving Party either: (A) in re- sponse to an enforceable order by a court or other governmental body; (B) as otherwise required by law; or (C) necessary to estab- lish 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 purposes; provided, however, the Receiv- ing Party shall provide prompt prior written notice of any such Con- fidential Information disclosure to the Disclosing Party (to the extent allowed by applicable law) to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure. d. Ownership and Return of Confidential Information. The Disclosing Party’s Confidential Information 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 Confiden- tial Information except as expressly set forth in this Agreement. Within 5 business days after the Disclosing Party’s request, the Re- ceiving Party will promptly either (at the Disclosing Party’s election) destroy or deliver to the Disclosing Party all Confidential Infor- mation furnished to the Receiving Party, and the Receiving Party agrees to provide a written officer’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 Li- censed Programs will perform substantially as specified in the Li- censed Programs Documentation. Yardi does not warrant that the Licensed Programs will meet Client’s requirements and expecta- tions. 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 reasonable efforts to modify the Licensed Programs so that the Licensed Programs con- form to that warranty. If such modification is not commercially rea- sonable, then Yardi will notify Client and Client may terminate this Agreement. In the event Client terminates this Agreement per this section 10(b) (Remedy 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 Cli- ent’s termination. THE FOREGOING REMEDY IS CLIENT’S SOLE REMEDY IN THE EVENT OF A BREACH OF THE WARRANTY SET FORTH IN SECTION 10(a) (Limited Software Warranty). c. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, YARDI DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH REGARD TO THE LICENSED PROGRAMS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MER- CHANTABILITY AND FITNESS FOR A PARTICULAR PUR- POSE. DocuSign Envelope ID: 09D96903-06C4-425B-A579-4C1CC0F60E2A Page 5 of 11 Confidential Preparation Date: July 15, 2019 4:49 PM d. Internet Performance Disclaimer. Yardi does not and cannot control the flow of data via the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt the internet. Yardi will use com- mercially reasonable efforts to remedy and avoid such events, but cannot guarantee that such events will not occur. Accordingly, Yardi disclaims any liability resulting from or relating to such events. 11. Damage Limitations. a. Damage Waiver. REGARDLESS OF ANY OTHER PRO- VISION IN THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YARDI DISCLAIMS ALL OB- LIGATIONS AND LIABILITIES FOR SPECIAL, INDIRECT, INCI- DENTAL, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, ATTORNEYS' AND EXPERTS' FEES, AND COURT COSTS (EVEN IF YARDI HAS BEEN ADVISED OF THE POSSI- BILITY OF THESE DAMAGES), ARISING FROM OR IN CON- NECTION WITH THIS AGREEMENT. b. Liability Limit. IN ADDITION TO THE LIMITATIONS OTHERWISE SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED BY APPLICABLE 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, REGARDLESS 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. 12. Ownership. a. Yardi’s Ownership. Client agrees that, as between Yardi and Client, Yardi is and shall remain the sole and exclusive owner of all right, title and interest in and to the Licensed Programs, De- liverables, Yardi Cloud, Yardi Cloud Services, and Licensed Pro- grams 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 Programs Documentation are the licenses expressly granted to Cli- ent in this Agreement. b. Client’s Ownership. Yardi agrees that, as between Yardi and Client, Client is and shall remain the sole and exclusive owner of all right, title and interest in and to Client Data. 13. Indemnification. a. Indemnity. Yardi agrees to defend, indemnify and hold Cli- ent 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 Programs Documentation, and Deliverables in accordance with this Agreement’s terms in- fringes on a third-party’s proprietary information, trademark, copy- right, patent rights or intellectual property rights, or misappropriates a third-party’s trade secrets. b. Indemnity Conditions. Yardi’s defense and indemnifica- tion obligation per section 13(a) (Indemnity) is conditioned upon the following: (i) Client providing Yardi with prompt written notice of any claim for which indemnification is sought; (ii) Yardi having sole con- trol of the defense and settlement of such claim, provided, how- ever, that Client shall have the right to have any suit or proceeding monitored by counsel of Client’s choice and at its expense; and (iii) Client’s reasonable cooperation with Yardi in the defense and set- tlement of the claim. c. Injunction. If the Licensed Programs 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 an injunction against Client’s continued Use of the Licensed Programs, Yardi will: (i) replace or modify the Li- censed Programs to avoid the misappropriation/infringement claim; (ii) 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 programming ser- vices including, without limitation, database customizations, user interface customizations, database reports, database scripts and other programming services (collectively, “Programming Ser- vices”). b. Programming Services Terms. The Fees for Program- ming Services, if initially ordered, are set forth in Schedule A (Fee Schedule). Client will otherwise initiate Programming Service re- quests by providing written notice of the desired services to Yardi, and Yardi will advise Client of Yardi's availability and schedule for performing the Programming Services. Programming Services are subject to Client's written acceptance of: (i) Yardi's schedule for meeting Client's Programming Service request; and (ii) Yardi's Fees for such Programming Services. c. Deliverables License. Subject to Client’s full payment of all Undisputed Fees related to Programming Services, 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 speci- fied in section 15(b) (the “Permitted Exceptions”), Client shall not (either directly or indirectly) assign, sell, convey, pledge, or other- wise transfer this Agreement without first obtaining Yardi's express written consent, which Yardi shall not unreasonably withhold. Ex- cept for the Permitted Exceptions, any attempted assignment made without Yardi’s prior express written consent is void and a material breach of this Agreement. b. Permitted Exceptions. Subject to the conditions prece- dent set forth in this section 15(b) (Permitted Exceptions), Client may assign this Agreement without Yardi’s prior consent and upon notice: (i) to a wholly owned subsidiary; or (ii) in connection with any merger, acquisition, or reorganization involving Client. Any as- signment is subject to the following conditions: (A) Client, or Cli- ent’s successor, continuing in the same type of business that Client was conducting at the time of this Agreement’s execution; and (B) Client or Client’s successor providing to Yardi a written ratification and assumption of this Agreement (in a form reasonably satisfac- tory to Yardi) concurrent with the assignment. 16. Outsourcing. a. Server Location. Yardi reserves the right to locate the vir- tual servers and other equipment needed to provide the Yardi Cloud either at its facilities or at the facilities of independent service providers. Yardi may change the location of the virtual 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, and Licensed Programs. 17. Mediation. a. Mediation Request; Condition Precedent. In the event of a dispute arising out of or related to this Agreement which the par- ties are unable to resolve through direct negotiation, either party DocuSign Envelope ID: 09D96903-06C4-425B-A579-4C1CC0F60E2A Page 6 of 11 Confidential Preparation Date: July 15, 2019 4:49 PM may serve upon the other at its principal place of business a re- quest for mediation. Neither party may file an action against the other in any court, or initiate any other legal proceeding, unless and until the party seeking to do so has first requested a mediation hearing and made a good faith effort to complete the mediation process provided in this Agreement. b. Mediation Process. The parties will select a neutral, inde- pendent mediator with experience in the relevant subject matter by the rules of the office of the Judicial Arbitration and Mediation Ser- vice (JAMS) closest to the mediation venue. The parties shall con- duct the mediation not less than 10 or more than 20 days from the date the party requesting mediation gives notice of the request for mediation to the other party. The parties shall conduct the media- tion in Santa Barbara, California. The parties shall equally bear the mediation costs. c. Mediation Confidentiality. The parties shall maintain the mediation proceedings in confidence and shall not disclose to third persons the statements made in mediation by the other parties or the mediator. The mediation confidentiality provisions of California Evidence Code sections 1115 – 1128 shall apply to the mediation proceedings. d. Mediation Statements; Attendee Authority. At least 5 days before the date of the mediation, each party shall provide the mediator and the other party with a statement of its position and copies of supporting documents. Each party shall send to the me- diation a person who has authority to bind the party. e. Non-Binding. If a party participates in good faith in a me- diation and is dissatisfied with the outcome, that party may then invoke all legal rights and remedies available to the party at law or in equity. 18. General Provisions. a. Independent Contractor Status. The parties agree that they are independent contractors and nothing in this Agreement is intended to make the parties partners, agents, joint venturers, or any other form of joint enterprise, or to make the employees, agents, or representatives of one of the parties into employees, agents, or representatives of the other party. No party to this Agree- ment 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. (i) Action Initiated by Client. With respect to any action or proceeding initiated by Client (except a cross or counter-action in a proceeding initiated by Yardi which shall be governed and deter- mined by the same governing law as the proceeding initiated by Yardi), this Agreement shall be governed and determined by the laws of the United States and the State of California as such laws are applied to agreements made and performed entirely within the State of California. (ii) Action Initiated by Yardi. With respect to any action or proceeding initiated by Yardi (except a cross or counter-action in a proceeding initiated by Client which shall be governed and deter- mined by the same governing law as the proceeding initiated by Client), this Agreement shall be governed and determined by the laws of the United States and the State of Colorado as such laws are applied to agreements made and performed entirely within the State of Colorado. c. Venue. (i) Action Initiated by Client. Any action or proceeding re- lated to or arising out of this Agreement initiated by Client (except a cross or counter-action in a proceeding initiated by Yardi which shall be brought in the same venue as the proceeding initiated by Yardi) shall be resolved only in a court of competent jurisdiction in the City of Santa Barbara, State of California (or the court of com- petent jurisdiction closest to the City of Santa Barbara, CA if no court of competent jurisdiction resides in the City of Santa Barbara, CA), and the parties consent to the personal jurisdiction of such courts and expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried else- where. (ii) Action Initiated by Yardi. Any action or proceeding re- lated to or arising out of this Agreement initiated by Yardi (except a cross or counter-action in a proceeding initiated by Client which shall be brought in the same venue as the proceeding initiated by Client) shall be resolved only in a court of competent jurisdiction in the City of Eagle, State of Colorado (or the court of competent ju- risdiction closest to the City of Eagle, Colorado if no court of com- petent jurisdiction resides in Eagle, Colorado), and the parties con- sent to the personal jurisdiction of such courts and expressly waive any right they may otherwise have to cause any such action or pro- ceeding to be brought or tried elsewhere. d. Injunctive Relief. (i) Yardi Injunctive Relief. The parties acknowledge and agree that, if Client breaches any of its obligations under sections 2(a) (Licenses), 2(b) (Restrictions), 9 (Confidentiality) or 15 (As- signment), Yardi might incur irreparable harm and damage that might not be fully compensated with monetary damages. Accord- ingly, if Client breaches any provision of sections 2(a) (Licenses), 2(b) (Restrictions), 9 (Confidentiality), or 15 (Assignment) Yardi may seek specific performance of Client’s obligations under those sections and injunctive relief against any further violations of those sections. (ii) Client Injunctive Relief. The parties acknowledge and agree that, if Yardi breaches any of its obligations under section 9 (Confidentiality) Client might incur irreparable harm and damage that might not be fully compensated with monetary damages. Ac- cordingly, if Yardi breaches any provision of section 9 (Confidenti- ality) Client may seek specific performance of Yardi’s obligations under that section and injunctive relief against any further violations of that section. e. Binding Effect. This Agreement is binding on and inures to the benefit of the parties and their permitted assigns, succes- sors, and legal representatives. f. Notices. (i) The parties shall deliver any notice required by this Agreement by personal delivery, certified U.S. Mail return receipt 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 intended at its record address. The record addresses of the parties are set forth below. (ii) If to Client: Attn: Kim Williams Eagle County Housing & Development Authority PO Box 850 Eagle. CO 81631 (iii) If to Yardi: Attn: Legal Department YARDI SYSTEMS, INC. 430 S. Fairview Ave. Goleta, CA 93117 (iv) Either party may change its record address by giving written notice of such change to the other party. g. Waiver. The waiver of a party’s breach of this Agreement shall not operate or be construed as a waiver of any other or sub- sequent breach. DocuSign Envelope ID: 09D96903-06C4-425B-A579-4C1CC0F60E2A Page 7 of 11 Confidential Preparation Date: July 15, 2019 4:49 PM h. Severability. If a court or other body of competent jurisdic- tion determines that any part of this Agreement is unenforceable, the remainder of this Agreement shall nevertheless remain en- forceable. i. Headings. This Agreement’s section headings and cap- tions are inserted for convenience only and are not intended to form a material part of this Agreement. j. Data Use. Yardi may aggregate, compile, and use Client Data in order to improve, develop or enhance the Licensed Pro- grams and/or other services offered, or to be offered, by Yardi; pro- vided 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. k. Entire Agreement. This Agreement constitutes the final, complete, and exclusive statement of the agreement between the parties pertaining to this Agreement’s subject matter and super- sedes all prior and contemporaneous understandings or agree- ments of the parties. 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 warran- ties expressly set forth in this Agreement. l. Non-Solicit/Non-Hire. The parties agree not to solicit (other than a general solicitation to the public) the employment 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 employee of the other party for 6 months. m. Modification. The parties may only modify or amend this Agreement by a writing signed by both parties; provided, however, that Client may increase Client’s licensed Designated User, prop- erty, unit, etc. count (as applicable) by delivering to Yardi a signed copy of Yardi’s standard, approved form for such changes. n. Force Majeure. Neither party shall be liable under this Agreement for failure or delay in performance caused by a Force Majeure Event. If a Force Majeure Event occurs, the party affected shall use commercially reasonable efforts to resume the perfor- mance excused by the Force Majeure Event. o. Right to Audit and Compliance. In accordance with Yardi’s obligations to credit bureaus, credit reporting agencies, and including Yardi’s obligation to help prevent and detect potentially fraudulent and/or suspicious activity, Client acknowledges and agrees that Yardi may conduct random as well as regular monitor- ing of users’ access to and use of the Yardi Cloud and Licensed Programs as they relate to this Agreement in order to validate that users are accessing and using the Yardi Cloud and Licensed Pro- grams for legitimate purposes and in accord this Agreement. Addi- tionally, pursuant to any obligations Yardi has, or may have, under any laws or regulations concerning the prevention of identity theft, financial fraud, money laundering, terrorist financing, etc., Client agrees to comply with any standard Yardi “know-your-client” re- quirements, processes, and/or procedures. p. Signature; Counterparts. This Agreement is not binding on the parties until both parties have signed it and have received a copy signed by the other party. However, both 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 bind- ing upon the parties. Counterparts 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 executed in counterparts, this Agreement will be as effective as if simultaneously executed. EAGLE COUNTY HOUSING & DEVELOPMENT AUTHORITY (“Client”) By: {SIG_Client} Date: {DT_Client} Print Name: {NA_Client} Title: {TI_Client} YARDI SYSTEMS, INC. (“Yardi”) By: {SIG_Emp} Date: {DT_Emp} Print Name: {NA_Emp} Title: {TI_Emp} Rev. 010319 DocuSign Envelope ID: 09D96903-06C4-425B-A579-4C1CC0F60E2A Michael Remorenko 7/25/2019 Director 8/6/2019 Jeanne McQueeney Commissioner Page 8 of 11 Confidential Preparation Date: July 15, 2019 4:49 PM SCHEDULE A Fee Schedule Yardi Pin #: 100087096 Yardi Order #: 197967 License Unit of Measure (UOM) Count $/UOM $/UOM Concession Net $/UOM Annual Fee Voyager SaaS Select Property Management Unit 397 $30.00 $0.00 $30.00 $11,910.00 Affordable Unit 112 $5.00 $0.00 $5.00 $560.00 RENTCafé Payments-Only Portal Unit 55 $0.00 $0.00 $0.00 $0.00 RENTCafé Resident Portal Unit 342 $5.00 $0.00 $5.00 $1,710.00 $14,180.00 License UOM Count $/UOM $/UOM Concession Net $/UOM Monthly Fee Payment Processing v2 Unit 397 per PPv2 Fees TBD TBD Service UOM Count $/UOM $/UOM Concession Net $/UOM One-Time Fee On-Site Implementation/Training hour 80 $200.00 $0.00 $200.00 $16,000.00 Conversion Services: Yardi to Yardi Upgrade Property 4 $500.00 ($250.00) $250.00 $1,000.00 $17,000.00 Annual Fee $14,180.00 Monthly Fee TBD billed monthly One-Time Fee $17,000.00 Sub-Total $31,180.00 Sales Tax as applicable Total Due $31,180.00 Voyager SaaS Select Annual Fees Monthly Fees One-Time Fees Total Total Total Additional Terms Total Fees Due 1. PAYMENT TERMS (excluding applicable taxes): 100% payable upon execution of this Agreement. 2. Client may request future paperwork to increase/decrease the licensed Unit count by a minimum of 25 Units. Client may access Yardi Client Central to increase/decrease the licensed Unit count online without a minimum. 3. Additional terms are set forth in the following schedules to this Agreement: B – Yardi SaaS Subscription Services and Governance Schedule C – Additional Terms 4. Client’s total Annual Fee and total Monthly Fee are subject to increase on each Anniversary Date; such increases shall not exceed the percentage increase in the U.S. Department of Labor, Bureau of Labor Statistics’ Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W): U.S. City Average for the preceding year. DocuSign Envelope ID: 09D96903-06C4-425B-A579-4C1CC0F60E2A Page 9 of 11 Confidential Preparation Date: July 15, 2019 4:49 PM SCHEDULE B Yardi SaaS Subscription Services and Governance Schedule Server Management Yardi will provide server management for Yardi Cloud servers running the Voyager Licensed Programs per the following guidelines: 1. All Yardi Cloud servers are virtualized; 2. Yardi will allocate to Client the resources required to maintain and deliver the Voyager Licensed Program in accord with the terms of paragraphs 2 (Data and File Management) and 4 (Licensed Programs Support and Governance of Use) below; 3. All Voyager Licensed Programs production servers are configured for high availability with redundancy within the Yardi Cloud; 4. Non-production servers are not configured for high availability; 5. Yardi will provide the following managed services as they relate to the Yardi Cloud: a. Installation, maintenance (Microsoft patches and upgrades) and licensing of Microsoft Operating System; b. Installation, maintenance (Microsoft patches and upgrades) and licensing of Microsoft SQL Server; c. Installation, maintenance (Yardi patches and upgrades) for the Licensed Programs; d. Installation, maintenance (vendor patches and upgrades) and licensing of security and anti-virus software; e. Installation, maintenance (vendor patches and upgrades) and licensing of monitoring software; and 6. Yardi reserves the right to upgrade the Yardi Cloud (both the physical and virtual aspects) upon notice to Client where, in Yardi’s reasonable discretion, the upgrade is necessary to keep the Yardi Cloud secure and technically industry standard. Data and File Management Yardi will provide Voyager Licensed Program data and file management services per the following guidelines. 1. Yardi will provide Client one live and one test database for the Voyager Licensed Program. 2. Yardi will provide up to 1TB of Voyager Licensed Program Combined Storage (defined below) at no additional charge. Client may purchase additional Voyager Licensed Program Combined Storage at Yardi’s then-current prevailing rate at the time of Client’s re- quest. “Combined Storage” means: a. Voyager Licensed Program Client Data file storage on Voyager Licensed Program file servers; and b. Voyager Licensed Program Client Data storage held within database servers and utilized by the Voyager Licensed Program. 3. Voyager Licensed Program production database backup files will be maintained for 14 days on a server accessible by Client via secure transfer server from which Client may retrieve the Voyager Licensed Program database backups at any time; and. 4. Voyager Licensed Program production data will be replicated in near-real-time both locally within the Voyager Licensed Program production data center, as well as to a separate, Voyager Licensed Program off-site disaster recovery location. Client Access Yardi will allow Client access to the Yardi Cloud via the following methods. 1. Via Internet URL to access and operate the Voyager Licensed Program Licensed Programs. 2. Via remote access the following, depending on operating requirements: a. The Voyager Licensed Program’s ' reports path for management of the Voyager Licensed Program support files; b. A Voyager Licensed Program database-level query tool; c. Voyager Licensed Program Client-server-based system administration tools provided by Yardi. Licensed Programs Support and Governance of Use Yardi will provide consulting and technical support for the Voyager Licensed Program per the following guidelines. 1. Implementation, consulting and support of the Voyager Licensed Program and the Voyager Licensed Program 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 Voyager Licensed Program which will include corrections, enhancements, and/or improvements. Client reserves the right to refuse updates and upgrades of the Voyager Licensed Program; provided, however, that Yardi reserves the right to cease application support services for versions of the Voyager Licensed Program more than 2 years older than the latest version of the Voyager Licensed Program generally released to Yardi’s clients. Annual Fees Include Client’s annual Fees include access to the Yardi Cloud, Voyager Licensed Program, Voyager Licensed Program updates/upgrades, and one application support hour per $1,000.00 of Client’s annual Fees. Clients installing the Voyager Licensed Program for the first time shall receive 35 additional application support hours for the first year only (i.e., until Client’s first Anniversary Date) at no additional charge. Yardi will debit all application support services (in ¼-hour increments with a ¼-hour minimum) against Client’s above-noted Voyager Licensed Program application support allotment except when related to a Software Error. “Software Error” means a reproducible failure of the Voyager Licensed Program to materially perform as specified in the Voyager Licensed Program 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 the Agreement, 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. DocuSign Envelope ID: 09D96903-06C4-425B-A579-4C1CC0F60E2A Page 10 of 11 Confidential Preparation Date: July 15, 2019 4:49 PM SCHEDULE C Additional Terms Product Terms: 1. Voyager Property Management includes Accounting, Property Management, Maintenance/Work Orders 2. Payment Processing v2: Client has read, understood, and agrees to be bound by the additional payment processing terms and conditions set forth at https://clientcentral.yardi.com/core_custompage/Payment-Processing-PP2-PayFac and incorporated into this Agreement by this reference, as they may be amended from time to time (the “Payment Processing Terms”). Client agrees that such Payment Processing Terms shall govern Client’s use of Yardi’s Payment Services, CHECKscan, and Walk-In Rent Collection/Rent Payment Services. a. Definitions. (1) “ACH” means a nationwide funds transfer network that enables participating financial institutions to electronically credit, debit and settle entries to bank accounts. (2) “Chargeback” means a Transaction that is disputed at the request of either the User or by the User’s card issuer. A Chargeback will cause the amount of the original sale and a Chargeback fee to be deducted from the Client’s bank account. (3) “Check 21” means the Check for the 21st Century (Check 21) Act and all regulations pertaining to the Check 21 Act. (4) “CHECKscan” means the process by which paper checks are scanned and converted into an electronic form for payment and automatically recorded within the software. (5) “Check Bill-Pay Payments” means a payment made by the Check 21 payment services provided by Yardi and (if applicable) JHA MC pursuant to these Payment Processing Terms. (6) “Payment Services” means Yardi’s online payment and payment processing services with respect to Bill-Pay Payments and User charges made using Payment Network-branded payment methods and ACH methods. (7) “Retrieval Fee” means a request made by a User for a sales draft or supporting documentation in order to sub- stantiate a Transaction. (8) “Third Party Payment Services (TPPS)” means any non-Yardi online payment services designated by Yardi as supported by Yardi with respect to Bill-Pay Payments and User changes made using Payment Network branded payment methods and ACH methods. (9) “Transaction” means a debit or a credit submitted for processing by a User, including but not limited to prospec- tive tenant application fees, tenant rent payments, other document fees, applicable service fees, and resubmis- sion of rejected items, but not including a Bill-Pay Payment. (10) “Users” means tenants and prospective tenants managed by Client, who make a Transaction as defined above. With respect to CONDOCafé Certificates only, Users shall mean tenants and prospective tenants managed by Client, and other third parties including but not limited to real estate brokers and attorneys who make a Transac- tion as defined above. (11) “Yardi Bill-Pay Payment” and “Bill-Pay Payment” means the ACH or physical check payment made through Payment Processing v2. b. Fees. In the event Client upgrades from Payment Processing Transactions to Payment Processing v2, Yardi shall continue to charge Client for Transactions at the rate previously negotiated for Payment Processing Transactions for a period of 3 months from the effective date of the document in which Payment Processing v2 was initially licensed to allow Client to implement the upgrade. In the event Client implements the upgrade in less than 3 months, Transactions shall begin to be billed at the Payment Processing v2 rates outlined below once the upgrade goes live. (1) Client-Paid Transactions: Client acknowledges and agrees to pay the following Fees for each of the following Transactions or Bill-Pay Payment type (which apply per Transaction or Bill-Pay Payment): Payment Processing (for accounts receivable): a) CHECKscan: $0.50 b) ACH: $1.95 c) Signature Debit Cards: see online terms provided in the hyperlink above d) Credit Cards: see online terms provided in the hyperlink above e) Monthly transaction minimum (not applicable when UOM is Unit): If Client fails to meet the monthly transaction minimum outlined in Schedule A (Fee Schedule), if applicable, Yardi shall charge Client for the remaining Transactions (i.e., the Transactions required to satisfy the aforementioned monthly min- imum) at the lowest rate outlined above in subsections Fees 1(a) through 1(c). Client will be invoiced for actual Transactions processed for nine months commencing on the effective date of the document in which Payment Processing v2 was initially licensed. Thereafter, Client will be invoiced the monthly minimum or actual usage, whichever is greater. Yardi Bill-Pay (for accounts payable): a) ACH and Check Writing via Check Bill-Pay Payments: $1.00 TPPS (for accounts receivable): a) TPPS Change of Service: $950.00 per addition/change to a third-party payment processor b) TPPS CHECKscan: see Payment Processing (for accounts receivables) above c) TPPS ACH: see Payment Processing (for accounts receivables) above d) TPPS Credit/Debit Cards: $1.95 TPPS (for accounts payable): a) TPPS Change of Service: $950.00 per addition/change to a third-party payment processor b) TPPS ACH and Check Writing via Check Bill-Pay Payments: see Yardi Bill-Pay (for accounts pay- able) above DocuSign Envelope ID: 09D96903-06C4-425B-A579-4C1CC0F60E2A Page 11 of 11 Confidential Preparation Date: July 15, 2019 4:49 PM (2) Tenant-Paid Transactions. (i) Client expressly desires that Yardi assess each User directly any Fees applicable to each User-initiated Transaction. (ii) Notwithstanding any other term to the contrary, for all Transactions that are designated by Client as the responsibility of User, any fees or charges imposed by a processing institution, cor- respondent bank, merchant bank or other institution other than the original Transaction Fee (such as Chargebacks and Retrieval Fees) shall at all times be the sole responsibility of Client and not User, which Client acknowledges and agrees to pay. (3) The Fees set forth above may be amended by Yardi in its reasonable sole discretion. Yardi will, upon Client’s written request, provide Client with the then-current schedule of Fees. Allotted DUs included: 1. Agreement includes unlimited residential DUs Implementation/Training Details: 1. On-Site Implementation/Training- In the event Client is purchasing Voyager for the first time, Yardi has advised Client that a minimum of 72 hours of implementation/training or use of a third-party Contractor is necessary for a proper basic implementation. Any unused implementation/training may be applied toward future goods/services. Conversion Details: 1. Yardi agrees to provide a standard migration of 1 Beacon-associated database to Voyager using Yardi’s data conversion tool at no additional charge. Data migration services are subject to Yardi’s Data Conversion Guidelines. Telecom support services related to migration will be debited against Client’s support service allotment. Other Terms: 1. Yardi licenses/services are sold separately unless otherwise stated. 2. Client acknowledges that additional licenses/services [i.e., in addition to those initially set forth in Schedule A (Fee Schedule)] require additional Fees at Client’s then-current, cumulative, CPI-increased base rate (which base rate shall be annually CPI-increased upon invoicing approximately 60 days prior to each Anniversary Date) for the additional licenses/services at the time of Client’s request. Subject to: (i) at least 5 business days’ prior written notice from Client; (ii) Client’s execution of an amendment to the Agreement; and (iii) payment of additional Fees, Yardi will increase Client’s licensed maximum number of licenses. 3. Client acknowledges and agrees that ETL for 1 foreign database is included with the core system, and it is to be used solely for the purpose of onboarding property data into the Client’s database and with any other Yardi product for which ETL is recommended for use by Yardi to enhance product function. The foreign database included is not to be used as an interfacing tool with external systems except when ETL services are purchased separately. DocuSign Envelope ID: 09D96903-06C4-425B-A579-4C1CC0F60E2A