Extracted text (via pymupdf)
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Client ID: XX62999
File: Glendale Housing Authority (AZ)
Page 1 of 4
ORDER DOCUMENT #1
SAAS SERVICES
This Order Document is effective as of April 1, 2021 (the “Effective Date”). This Order Document is an offer to make an offer and does not
constitute a valid contract between the Parties until countersigned by MRI. Any pricing terms in this Order Document are valid for thirty
(30) days following issuance of this Order Document. The terms and conditions found attached hereto as Exhibit A (“MRI Terms and
Conditions”), are incorporated by reference and made a part of this Order Document as fully as if set forth herein. The MRI Terms and
Conditions may be amended from time to time by MRI. Capitalized terms that are not otherwise defined in this Order Document shall have
the meanings set forth in the MRI Terms and Conditions. If Client is utilizing a SaaS Service, this Order Document, the Master Agreement,
the SaaS Services Schedule, the Professional Services Schedule and any exhibits and attachments thereto all contained in the MRI Terms
and Conditions shall specifically govern the relationship between MRI and Client. If Client is utilizing MRI’s subscription on-premise license,
this Order Document, the Master Agreement, the Limited Software License and Maintenance and Support Schedule, the Professional Services
Schedule and any exhibits and attachments thereto all contained in the MRI Terms and Conditions shall specifically govern the relationship
between MRI and Client. In the event of a conflict between an Order Document and the Master Agreement, the Master Agreement shall
prevail, provided, however, that such standard variable terms such as price, quantity, term length and License Metrics, tax exempt status,
payment terms and the like shall be as specified on each Order Document. If the Order Document contains language that specifically
overrides an enumerated section of the Master Agreement, such specific language in the Order Document shall prevail against the
enumerated language in the Master Agreement.
By signing this Order Document, Client verifies that it has read the MRI Terms and Conditions, and acknowledges its agreement to be bound
by them.
Glendale Housing Authority (AZ) (“Client”)
6842 North 61st Avenue
Glendale, AZ 85301
Lindsey & Company, Inc., an MRI Software LLC Company (“MRI”)
28925 Fountain Parkway
Solon, OH 44139
Signature:
Signature:
Print Name:
Print Name:
Title:
Title:
Signature:
Print Name:
Title:
Signature:
Print Name:
Title:
MRI Legal Approved
K. Gedon
Roman Telerman
Roman Telerman
Client ID: XX62999
File: Glendale Housing Authority (AZ)
Page 2 of 4
The Parties accept and agree to this Order Document, as follows:
CLIENT CONTACT INFORMATION
Administrator:
Address:
E-mail:
Voice:
Fax:
Cell:
Technical Contact/Download Recipient:
Address:
E-mail:
Voice:
Fax:
Cell:
Billing Contact:
Address:
E-mail:
Voice:
Fax:
SAAS SERVICES
Products
License Metric
Quantity
Territory
Antivirus Powered By ESET
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Accounts Payable
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM ACH Processing
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Bank Account Manager
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM AP Document Management
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM eHAP & eSTUB
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM eTenant Files
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Excess Utilities
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Family Self Sufficiency (FSS)
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Fixed Assets
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM General Ledger
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Inventory Control
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Low-Rent Inspections
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
My Waiting List IVR
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Payroll
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
Client ID: XX62999
File: Glendale Housing Authority (AZ)
Page 3 of 4
HM Purchase Orders
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Rent Reasonableness
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Section 8 Accounts Receivable
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Tenant & Applicant Processing
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Tenant Accounts Receivable
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Work Orders
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
HM Work Orders Mobile
Users
Up to 25 Concurrent Users
Up to 25 Advantage Users
USA
Advantage Database
Each
Up to 1 Production
USA
HousingManager.com Website (select one)
☐ Basic
☒ Premium
☐ Standard
Each
1 website
USA
FEES, PAYMENT AND TERM
Initial Term
(1)
Effective Date
First Twelve Months SaaS Fees
(2)
One (1) Year
April 1, 2021
$23,744
(1) The Initial Term and any Renewal Term are non-cancelable, subject to termination rights as set forth in the Agreement.
(2) MRI may, at any time after the first twelve (12) months of the Effective Date listed above, and in its sole discretion, modify the
Fees upon ninety (90) calendar day prior written notice to Client. For purposes of notice in this footnote, email or first-class mail
will suffice.
Payment Terms: Fees are due in U.S. Dollars annually in advance. Initial payment must be received by MRI prior to the Effective Date and
any Renewal Term; MRI has no obligation to provide SaaS Services until such payment is received.
LICENSE METRICS AND USE RIGHTS DEFINITIONS
Definitions
A "Concurrent User” license permits Client to assign an unlimited number of User IDs to its employees or Affiliates’ employees, but
simultaneous access to the SaaS Services is limited to the number of authorized concurrent licenses paid for and held by the Client.
An "Advantage User” license permits Client to provide simultaneous access to the Software License is limited to the number of authorized
concurrent licenses paid for and held by the Client within the Advantage Database.
Use Rights: The license to use the SaaS Service is priced based on Client’s License Metrics as of the Effective Date of this Order Document
and allows Client to use the Software to manage up to the quantity set forth above. Additional licenses must be purchased by Client in the
event the number of actual License Metrics exceeds such licensed quantity. If Client’s actual License Metrics exceed such licensed quantity,
then MRI reserves the right to charge a premium fee for any additional License Metric used. The cost for these additional licenses will be
at MRI’s then-current fees. There shall be no fees adjustments or refunds for any actual License Metrics decreases. Fees (other than monthly
user access fees) are based on quantity purchased, not usage.
Self-Certification: Without prejudice to MRI’s audit rights pursuant to the Agreement, Client will, by April 1st of each year, document and
certify that use of the SaaS Services is in full conformity with the use rights granted hereunder. The Self-Certification Document can be
found in the MRI Terms and Conditions.
Client ID: XX62999
File: Glendale Housing Authority (AZ)
Page 4 of 4
MAINTENANCE AND TECHNICAL SUPPORT
Maintenance Level:
Standard
Fees: Maintenance is included in the SaaS Fees.
Designated Support Contacts:
Maintenance and Support may only be requested by the two (2) Designated Support Contacts named below who must have successfully
completed MRI’s standard training course prior to (i) logging case requests; or (ii) receiving status updates on cases. Client may change
these Designated Support Contacts from time to time, to other Client employees, by promptly delivering in writing to MRI the names and
contact information of the new Designated Support Contacts (email is sufficient). The SaaS Services fees are related to the number of
contacts; access to support by any additional contacts will be subject to additional fees.
One (1) Designated Support Contact must be the Administrator listed above in this Order Document.
The initial Designated Support Contacts of Client are:
Name:
Title:
Phone:
Address:
Email:
Name:
Title:
Phone:
Address:
Email:
1
Statement of Work – Work Authorization
ORDER DOCUMENT & STATEMENT OF WORK #696787
This Order Document and Statement of Work incorporates by reference and is governed by the terms and conditions of
the relevant governing agreement by and between Glendale Housing Authority (AZ) (“Client”) and Lindsey & Company, an
MRI Software LLC Company (“MRI”) and is effective as of April 1, 2021 (“Effective Date”).
Client Name:
Glendale Housing Authority (AZ)
Date:
April 1, 2021
PROJECT SCOPE
Client is engaging MRI to provide technical services associated with setting up a hosted SaaS environment for Lindsey
Software as well as eTenant file setup.
PROJECT PRE-REQUISITES
1. Before MRI is able to secure/book any MRI resources, provide any targeted start and end dates for project the
following must be in place.
1.1. The Master Agreement has been signed by both MRI and the Client, if applicable.
1.2. Statement of Work has been signed by the Client and returned to MRI.
PROJECT SERVICE DELIVERABLES
1. MRI has endeavored to provide the most accurate estimates for each deliverable and activity based on the scope and
budgetary information provided by the Client. All estimates at this stage in the project are subject to change.
2. The project timescales for this project and related deliverables must be formally communicated and agreed upon by
MRI and the Client.
3. MRI maintains a backlog of project work; therefore the start date for this project will be subject to MRI availability at
the time this Statement of Work is executed. Should you have any questions regarding expected backlog for this
project, please contact MRI at gpsrequests@mrisoftware.com.
GENERAL ASSUMPTIONS
1. Once the Statement of Work is executed, the assigned MRI Professional Services Consultant will be scheduled with
project personnel at a mutually agreeable timetable.
2. Efforts around change management, business process reengineering, or project management of Client resources is
considered out of scope.
3. Mutually agreed changes to specifications, whether before, during or after MRI’s performance will be handled by
processing a Project Change Request (PCR).
4. MRI reserves the right to charge Client a cancellation fee in accordance with the Agreement.
5. Client shall make reasonable business efforts to deliver a stable network and computing environment prior to any
services engagement.
6. Client will work with MRI to resolve all issues related to the project in a timely fashion.
7. Client will communicate to MRI any changes in schedule, availability of project personnel, hardware, software,
resources or facilities related to the project within a reasonable timeframe in advance of scheduled engagements.
8. Client will manage the availability of appropriate personnel for knowledge transfer as well as decision-making and
escalation of decisions.
2
Statement of Work – Work Authorization
9. The project team may adjust the project plan based on real world findings and the Client’s ability to secure required
resources.
10. If applicable, Client will provide/grant remote access to their self-hosted MRI installation for the consultant(s)
assigned to complete the work described in this SOW.
11. If Client’s data is located in the SaaS platform, access will automatically be granted to the consultant(s) assigned to
complete the work described in this SOW.
12. Location of work will be discussed and determined mutually between both parties.
PRICING ASSUMPTIONS
The professional services fee estimates are for MRI resources (or affiliates). Client understands that
professional services fees are due as incurred and are billed on a monthly basis at month end. Client agrees to
pay invoices in accordance with invoice terms. Failure to pay invoices will be handled in accordance with MRI
collections policy.
1. MRI fees for the scope of Services described in this Statement of Work will be billed to the Client on a time and
materials basis for hourly services and at a fixed fee basis for all other services per the Pricing Schedule below.
2. Change orders executed against this contract will be contracted at MRI standard rates.
3. Future work for either Implementation Services or Learning Services not associated with this Statement of Work will
be contracted at standard rates.
4. The cost estimates are for MRI personnel or affiliates and will be billed on a monthly basis.
5. Identified SCHEDULES may be modified at the request and/or acceptance of Client. Changes in SCOPE will require
PCR (see above).
6. Fee estimates do not include travel and lodging expenses. Travel and related expenses (including transportation,
hotels, meals, etc.) will be billed at the actual amounts incurred.
7. All travel expenses will be governed by MRI Global Professional Services’ Client Billable Expense Guidelines, furnished
upon request.
8. Client is responsible for payment of any applicable taxes. MRI will invoice Client for any applicable taxes in
connection with performance of the Statement of Work in accordance with the Agreement. Any tax amounts are over
and above the fees and expenses noted in the Statement of Work and any amounts prepaid hereunder for such fees
and expenses will not be applied to taxes due.
9. Pricing schedule is subject to change if Statement of Work is not signed within 30 days of creation date at which time
this Statement of Work will expire.
3
Statement of Work – Work Authorization
PRICING SCHEDULE
MRI DELIVERABLE
RATE
QUANTITY
UNIT
EST. SERVICE FEES
Technical Services- SaaS
$1,610
1
Instance
$1,610
Professional Services- eTenant
$500
1
Implementation
$500
MRI Services Total
$2,110
AGREEMENT TO COMMENCE WORK:
With my signature below and on behalf of Client, Client hereby, (i) acknowledges that this entire Statement of Work (all
pages) accurately documents the terms of the work agreed upon by Client and MRI; (ii) approves this Statement of Work
as issued; (iii) gives approval for commencement of work as specified herein; and (iv) acknowledges that these terms are
subject to change in accordance with any modification to the scope of work.
Glendale Housing Authority (AZ)
* Signature:
* Name:
* Date:
* Signature:
* Name:
* Date:
* Signature:
* Name:
* Date:
* Indicates required field
File: Glendale Housing Authority
Page 1 of 11
EXHIBIT A
MASTER AGREEMENT
This Master Agreement is entered into between MRI Software LLC (“MRI”) and the Client named in the Order Document, and the authorized
representatives of the Parties hereby execute this Master Agreement to be effective as of the Effective Date, as defined in the Order Document. As
used in this Agreement, “Party” means either Client or MRI, as appropriate, and “Parties” means Client and MRI.
1.
PURPOSE AND SCOPE
1.1
Master Agreement. This Master Agreement establishes the
general terms and conditions to which the Parties have agreed in order
to facilitate the licensing of residential and/or commercial property
management enterprise software, content, other products and/or the
provision of related services. Additional product or service-specific
terms and conditions are set forth in one or more Schedules (as further
defined in Section 1.2 herein).
All references to the “Master Agreement” shall mean this document,
exclusive of Schedules. All references to the “Agreement” wherever
found shall include this Master Agreement, all Schedules, the Order
Document and any attachments incorporated in the Schedules.
1.2
Incorporation of Schedules. This Master Agreement shall fully
incorporate by reference the terms and conditions found in each of the
Schedules marked on the Order Document
The Parties may execute, from time to time, additional Schedules
under the terms of this Master Agreement.
1.3
Incorporation of Order Documents.
“Order Document” means the document(s), regardless of its actual
name, executed by the Parties which incorporates by reference the
terms of this Master Agreement and applicable Schedules, and describes
Client’s order-specific information, such as description of Software or
Services ordered, license scope, use and restrictions, fees, milestones,
and/or Third Party EULAs, if any.
At any time after execution of the initial Order Document, Client may
purchase additional Software licenses or Services or otherwise expand
the scope of such license or Services granted under an Order Document,
upon MRI’s receipt and acceptance of a new Order Document specifying
the foregoing.
1.4
Incorporation of EULAs. Client’s use of any Third Party
Software licensed hereunder or incorporated in the SaaS Services shall
be subject to, and Client shall comply with, the Agreement and any
applicable EULAs, if any, the terms of which may be incorporated in the
Agreement or contained in a separate document. As between Client and
MRI, to the extent any terms and conditions of this Master Agreement or
a Schedule conflict with the terms and conditions of a Third Party EULA,
the terms and conditions of this Master Agreement and the Schedule
shall control unless the Third Party EULA explicitly overrides a term or
condition of the Master Agreement or Schedule. However, should a
dispute arise between Client and the Third Party Software provider, the
terms of the applicable Third Party EULA shall control but only to the
extent MRI is not a party to such dispute. By way of example, if this
Agreement is subject to Ohio Law and a Third Party EULA is subject to
California law, a dispute among MRI, Client and the Third Party
Software provider would be subject to Ohio law, but a dispute only
between Client and the Third Party Software provider would be subject
to California law. Each Third Party Software provider shall be
considered a third party beneficiary of the Agreement, with rights to
enforce the terms of the Agreement and the EULA, if any, against
Client, pursuant to the terms of Section 10.14 below.
1.5
Administrators. For the purposes of this Agreement,
“Administrators” means the individual so designated by Client on the
Order Document. An Administrator has full administrative privileges for
all Software and Services, including without limitation (i) creating,
deleting or modifying databases or user accounts; (ii) creating,
deleting, copying, restoring or requesting copies of databases; (iii)
requesting security and audit reporting; (iv) security class modification;
and (v) site modification. Once named, the Administrator(s) shall have
sole authority to instruct MRI and make decisions on behalf of Client
regarding Client’s use of the Software or Services. MRI shall be entitled
to rely upon any representation of the Administrator(s) without further
verification of authority. MRI may, from time to time, in its sole
discretion, require written documentation of Client verifying the
authority or continued authority of any Administrator, which Client
shall provide upon request. At least one (1) Administrator must be a
Designated Support Contact. An Administrator must be an employee of
the Client.
1.6
Designated Support Contact. For the purposes of this
Agreement, “Designated Support Contacts” means the Client
employees so designated by Client on the Order Document. The Client
shall have the number of Designated Support Contacts as designated on
the Order Document. Only a Designated Support Contact shall be
permitted to contact MRI for any Maintenance and Support services and
shall have the authority to (i) log case requests; and (ii) receive status
updates on cases. A Designated Support Contact must be an employee
of the Client.
1.7
Client User. For the purposes of this Agreement, “Client User”
means a Client employee or Client Affiliate, acting directly on behalf of
Client and using the Software or Services solely for the purpose of the
Client’s internal business operations. If an Affiliate is a Client User,
Client warrants that it has the authority to bind such Affiliate(s) to the
terms of the Agreement and any applicable Schedule and further
warrants that Client shall be jointly and severally responsible (with any
such Affiliates) for a breach of such terms by its Affiliates. Client shall
only permit Client Users to access and use any Software or Service and
represents and warrants that all Client Users shall comply with the
terms and conditions of use set forth in this Agreement and each such
Client User shall be bound by a nondisclosure agreement with provisions
that are at least as restrictive as the terms of this Agreement. Client
shall indemnify and hold MRI harmless for all loss, damages, costs and
expenses (including reasonable attorneys’ fees) incurred by MRI for any
breach or other violation of this Agreement by a Client User. An
independent contractor, agent or other third party acting on behalf of
Client may be deemed a Client User upon prior written consent of MRI,
which MRI shall determine in its sole discretion, and may require such
independent contractor, agent or other third party to certify with or
enter contractual terms with MRI acceptable to MRI. In no event shall
the combined use of the Software or Services hereunder by Client and
its Client Users exceed the Licensed Metrics authorized under the
applicable Order Document.
1.8
Owner. The Software is designed to be used for residential
and/or commercial property management. If the Client is not the
owner of such property or not the owner of all such properties for
which the Software or any Service is utilized; but rather, Client is the
manager for the owner of such property (with the non-Client property
owner defined as “Owner”), then Client represents that Client either:
(i) is entering this Agreement directly in privity with MRI; or (ii) is the
duly appointed agent of the Owner and has the authority to enter into
and perform the Agreement and use the Software and Services pursuant
to the terms set forth in the Agreement. Client shall at all times be
solely liable for the payment of all fees and the observance of all
obligations, terms and conditions of the Agreement, regardless of any
action, inaction or nonpayment by any Owner. Client shall keep MRI
apprised in writing at all times of the identity and contact information
of the Owner, and if Client’s relationship changes with respect to the
Owner (by way of example and not by way of limitation, such as if
Client’s agency or management relationship with Owner terminates). If
Client’s relationship with an Owner or a particular property terminates
File: Glendale Housing Authority
Page 2 of 11
for any reason, Client shall continue to be liable for any and all fees
related to such Owner or property regardless of when such fees are
billed by MRI. Client shall immediately notify MRI in the event of any
change in ownership or control (including any change in control
pursuant to a management contract) of Client, Owner or any of the
properties, sites, or communities authorized for use of any Software or
SaaS Service. Client shall undertake all reasonable efforts to assist in
deactivating the ability of any such sold or transferred properties, sites
and communities to use or benefit from any Software or SaaS Service.
Client shall remain fully liable for the use of any Software or SaaS
Service until proper notification is completed.
2.
DEFINITIONS
“Affiliate” means an entity controlling, controlled by or under common
control with a Party to the Agreement where control means the
ownership or control, directly or indirectly, of more than fifty percent
(50%) of all the voting power of the shares (or other securities or rights)
entitled to vote for the election of directors or other governing
authority.
“Client” means the entity that has entered into this Agreement with
MRI. “Client” also refers to Affiliates authorized to use the Software
and Services in accordance with Section 1.7.
“Client Data” means any data and information that Client provides,
generates, transfers or makes available to MRI under the Agreement,
whether printed, electronic, or in some other format. Client Data shall
also include data and information belonging to Owner as well as
Owner’s customers and Client’s customers.
“Content” means any information, data, text, software, music, sound,
photographs, graphics, video messages or other material to which Client
is provided access through MRI or the Software.
“Configurations” means, regardless of whether such Configurations are
performed by MRI, Client or Client User, (i) configurations implemented
through use of the MRI application toolkit or other MRI approved
industry standard toolkit, and not through source code change, or (ii)
modifications to standard services reports. Notwithstanding any other
provision in the Agreement, if Client has Configurations performed by a
third party, such third party must be qualified as a Client User pursuant
to Section 1.7 prior to the disclosure of any MRI Confidential
Information to such third party.
“Documentation” means the user instructions, release notes,
Functional Specifications, manuals and on-line help files in the form
generally made available by MRI, regarding the use of the applicable
Software.
“Functional Specifications” means those specifications of the MRI
Software’s functionality as set forth in the MRI Software LLC and
Affiliated companies Functional Specifications, which may be found on
www.mrisoftware.com/MRIfunctionalspecs.asp,
which
specifications
may be updated from time to time by MRI upon posting new
specifications at such web page address.
“Intellectual Property” means any and all intellectual property rights,
recognized in any country or jurisdiction in the world, now or hereafter
existing, and whether or not perfected, filed or recorded, including
without limitation inventions, technology, patents rights (including
patent applications and disclosures), copyrights, trade secrets,
trademarks, service marks, trade dress, methodologies, procedures,
processes, know-how, tools, utilities, techniques, various concepts,
ideas, methods, models, templates, software, source code, algorithms,
the generalized features of the structure, sequence and organization of
software, user interfaces and screen designs, general purpose
consulting and software tools, utilities and routines, and logic,
coherence and methods of operation of systems, training methodology
and materials, which MRI has created, acquired or otherwise has rights
in, and may, in connection with the performance of Services hereunder,
create, employ, provide, modify, create, acquire or otherwise obtain
rights in.
“License Metrics” means the limitation on the usage of each of the
Software and Maintenance and Support services as designated and/or
defined in the applicable Order Document by a term such as the number
of leases, units, assets, users and the like.
“Maintenance and Support” includes (i) phone assistance and
workarounds so that the Software operates in material conformance
with the Functional Specifications, and (ii) Updates, all of which are
provided under MRI’s Maintenance and Support Policies (as may be
amended by MRI from time to time) in effect at the time the Support is
provided. For the avoidance of doubt, Support excludes Professional
Services.
“Maintenance and Support Policies” means those policies and
procedures listed in the Maintenance and Support Policies, that may
also
be
found
on
MRI’s
website
at
www.mrisoftware.com/maintenanceandsupport, which may be subject
to update by MRI from time to time.
“MRI Software” means each MRI-developed and/or MRI-owned software
product in machine readable object code (not source code), the
Documentation for such product, and any Updates and Upgrades thereto
(if purchased by Client).
“Owner” is defined in Section 1.8.
“Professional Services” means data conversion, implementation, site
planning, configuration, integration and deployment of the Software or SaaS
Services, training, project management and other consulting services.
“Protected
Materials”
means
Software,
Content,
Services,
Configurations, license keys and MRI’s or its licensors’ Intellectual
Property or Confidential Information.
“SaaS Services” the provision of the Software and/or Content as a
service which is hosted by MRI or its hosting providers and which is
accessed by Client via the internet, as more fully described in the SaaS
Services Schedule and associated Order Document(s).
“Services” means collectively (i) the Professional Services; (ii)
Maintenance and Support, and (iii) SaaS Services.
“Software: means collectively the MRI Software and Third Party
Software.
“Third Party EULA” or “EULA”: the end user license agreement, if
any, that accompanies or pertains to the Third Party Software, and that
is incorporated into the Agreement, appended to the Order Document
or is otherwise published by the third party supplier, and which governs
the use of or access by Client to the applicable Third Party Software. A
current
list
of
Third
Party
EULAs
may
be
found
at
www.mrisoftware.com/EULA, which may be updated from time to time.
“Third Party Software” means software in object code form, including
Documentation, Updates and Upgrades (if purchased by Client), owned
by an entity other than MRI which are to be provided to Client by MRI
on a pass-through, reseller or OEM basis pursuant to the terms of the
EULA.
“Updates” means a new version of the Software, if and when
developed after the effective date of the Order Document, which MRI
makes generally available to its customers as part of the Maintenance
and Support. Updates include bug fixes, patches, error corrections, non-
new platform changes, or minor modifications or revisions to the
Software that enhance existing performance. Updates exclude Upgrades
and new products, modules or functionality for which MRI generally
charges a separate fee.
“Upgrade” means a new Software release that may contain (i) new
applications; (ii) major functionality enhancements or improvements;
and/or (iii) a new platform, which MRI designates as an Upgrade and for
which MRI charges a separate license fee or, at MRI’s election, new
modules or products, or major releases that include significant feature
enhancements or significant architectural modifications for which MRI
charges an incremental upgrade fee.
3.
FINANCIAL TERMS
3.1
Fees and Payment Terms. Fees are specified in the applicable
Order Document. Fees are exclusive of, and Client is responsible for,
shipping costs.
File: Glendale Housing Authority
Page 3 of 11
Payment of all fees is due thirty (30) days after the invoice date, unless
otherwise agreed in the Order Document. Interest accrues on past due
balances at the lesser of a 1½% per month or the highest rate allowed
by law. Client is responsible for providing an accurate billing contact
on the Order Document and updating that billing contact as needed
from time to time such that MRI always has an accurate billing contact
for Client.
If Client fails to make payments of any fees due under the Agreement,
Client shall be in material breach of this Agreement. MRI will be
entitled to suspend its performance upon ten (10) days’ written notice
to Client and/or to modify the payment terms, and to require full
payment before any additional performance is rendered by MRI.
Notwithstanding any of MRI’s rights enumerated in Sections 3.1 or 9 of
this Master Agreement, if Client fails to timely pay applicable fees
under an Order Document, MRI shall be entitled to collect all past and
current amounts due and owing, and to accelerate all future amounts to
be due, such that all remaining periodic payments for the then current
term of the applicable Order Document are immediately due and owing.
Client shall be responsible to pay any collection expenses (including
attorneys’ fees) incurred by MRI.
Unless expressly provided otherwise, fees paid or payable for Software
licenses, SaaS Services or Maintenance and Support are not contingent
under any circumstances upon the performance of any Professional
Services.
3.2
Taxes. Unless expressly provided otherwise, the prices in the
Agreement do not include taxes. Client agrees to pay any taxes, other
than those based on MRI’s net income, arising out of the Agreement. If
Client is tax-exempt, Client agrees to send MRI a copy of its tax-exempt
certificate prior to execution of a Schedule. Client agrees to indemnify
MRI from any liability or expense incurred by MRI as a result of Client’s
failure or delay in paying taxes due.
3.3
Travel Expenses. Unless otherwise noted within the Order
Document, MRI’s reasonable travel and lodging expenses incurred by
MRI in the performance of Services on Client’s site will be billed
separately at actual cost.
4.
CONFIDENTIALITY
4.1
Defined. By virtue of the Agreement, the Parties may be
exposed to or be provided with certain confidential and proprietary
information of the other Party or third parties, including but not limited
to information designated as confidential in writing or information
which by its nature ought to be in good faith considered confidential
and proprietary to the disclosing Party (“Confidential Information”).
Confidential Information of MRI and/or its licensors includes but is not
limited to the terms and conditions (but not the existence) of the
Agreement, including without limitation all Order Documents, fees and
charges, all trade secrets, software, source code, object code,
specifications, documentation, business plans, customer lists and
customer-related information, financial information, proposals, budgets
as well as results of testing and benchmarking of the Software or
Services, product roadmap, data and other information of MRI and its
licensors relating to or embodied in the Software or Documentation.
MRI’s placement of a copyright notice on any portion of any Software
will not be construed to mean that such portion has been published and
will not derogate from any claim that such portion contains proprietary
and confidential information of MRI.
4.2
Non-Disclosure. Each Party will protect the other Party’s
Confidential Information from unauthorized use or dissemination and
use the same degree of care that each such Party uses to protect its
own confidential information, but in no event less than a reasonable
amount of care. Neither Party will use Confidential Information of the
other Party for purposes other than those necessary to directly further
the purposes of the Agreement. Neither Party will disclose to third
parties Confidential Information of the other Party without prior written
consent of such other Party. Notwithstanding anything in this
Agreement to the contrary, Client agrees that, upon request by Owner,
MRI may communicate directly with the Owner about all aspects of the
Agreement, the Client Data, and any other Client Confidential
Information, if applicable.
4.3
Exceptions. Information shall not be considered Confidential
Information to the extent, but only to the extent, that the receiving
Party can establish that such information (i) is or becomes generally
known or available to the public through no fault of the receiving Party;
(ii) was rightfully in the receiving Party's possession before receipt from
the disclosing Party free of any obligation to keep it confidential; (iii) is
lawfully obtained from a third party who has the right to make such
disclosure; or (iv) has been independently developed by the receiving
Party without reference to any Confidential Information of the
disclosing Party.
4.4
Compelled Disclosure. The receiving Party may disclose
Confidential Information of the disclosing Party if it is compelled by law
to do so, provided the receiving Party gives the disclosing Party
sufficient prior notice of such compelled disclosure (to the extent
legally permitted) to permit the disclosing Party a reasonable
opportunity to object to the compelled disclosure and to allow the
disclosing Party the opportunity to seek a protective order or other
appropriate remedy. The receiving Party shall provide reasonable
assistance, at the disclosing Party's cost, if the disclosing Party wishes
to contest the disclosure.
4.5
Remedy/Injunctive Relief. The Parties acknowledge that
disclosure of any Confidential Information may give rise to irreparable
injury to the Party whose information is disclosed, which injury may be
inadequately compensated in damages. Therefore, either Party may
seek injunctive relief against the other Party’s breach or threatened
breach of this Section 4 as well as any other legal remedies that are
available.
5.
PRIVACY
Client represents and warrants that before providing non-public
personal or financial information to MRI or its agents, it will comply
with any laws applicable to the disclosure of personal information,
including providing notices to or obtaining permission from third parties
to allow sharing of their personal information with MRI under the
Agreement. Notwithstanding anything in this Agreement to the
contrary, Client hereby grants to MRI a perpetual, non-cancelable,
worldwide, non-exclusive right to utilize any data that arises from the
use of the Protected Materials by Client whether disclosed on or prior to
the Effective Date for any legitimate business purpose, including the
right to sublicense such data to third parties, subject to all legal
restrictions regarding the use and disclosure of such information.
If Client provides personal data to MRI from data subjects in Canada or
the European Union (“EU”), then Client hereby (a) acknowledges that in
connection with any products or services provided by MRI under this
Agreement, MRI may transfer/access/store/process personal data
outside of the EU and Canada in countries (such as the United States)
that under EU laws may not ensure an adequate level of data protection
(the “Data Transfer”); and (b) consents to such Data Transfer, and
Client shall ensure that it complies with all applicable EU and Canadian
laws that apply to Client as the data controller of such personal data in
connection with the Data Transfer. MRI will take reasonable measures
to protect the security of such personal data transferred by Client to
MRI.
6.
LIMITED RIGHTS AND OWNERSHIP
6.1
Reservation of Rights. All rights not expressly granted in the
Agreement are reserved by MRI and its licensors. Client acknowledges
that: (i) all Software is licensed and not sold and all Content is
subscribed to and not sold; (ii) Client acquires only the right to use the
Protected Materials and MRI, its licensors, and Content providers shall
retain sole and exclusive ownership of all rights, title, and interest in
the Protected Materials, including (whether developed by MRI, Client,
Client User, or other third party) (a) Intellectual Property embodied in
or associated with the Protected Materials, (b) deliverables and work
product associated with the Protected Materials, and (c) all copies and
derivative works thereof; and (iii) the Protected Materials, including the
source and object codes, logic and structure thereof, constitute
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Page 4 of 11
valuable trade secrets of MRI and its licensors. Client hereby assigns to
MRI all right, title and interest in and to Configurations developed by
Client, Client User or by any other third party on behalf of Client;
however, Client shall retain a license to use such Configurations for so
long as Client retains a license to use the Software or SaaS Services, as
applicable, used in conjunction with such Configurations. Client agrees
to secure and protect the Protected Materials consistent with the
maintenance of MRI’s and its licensors’ rights therein, as set forth in
this Master Agreement. Client agrees to execute such further
instruments, and take such further actions as MRI may reasonably
request, at MRI’s expense, to apply for, register, perfect, confirm, and
protect MRI’s rights. Client shall reimburse MRI for any and all expenses
that MRI may incur (including interest, attorneys’ fees and other legal
expenses) in connection with MRI’s efforts to enforce its rights against
Client with respect to the Protected Materials, or any of MRI’s
Intellectual Property rights in the event MRI prevails in such
enforcement efforts. MRI’s ownership rights and proprietary interest as
outlined herein shall supersede and take precedence over any such
rights and interest outlined in the HUD Addendum.
6.2
Restrictions. Client shall not itself, or through any Affiliate,
Client User, employee, consultant, contractor, agent or other third
party: (i) sell, resell, distribute, host (except Client shall be permitted
to host the MRI Software with respect to a perpetual software license),
lease, rent, license or sublicense, in whole or in part, the Protected
Materials; (ii) decipher, decompile, disassemble, reverse assemble,
modify, translate, reverse engineer or otherwise attempt to derive
source code, algorithms, tags, specifications, architecture, structure or
other elements of the Software, including the license keys, in whole or
in part, for competitive purposes or otherwise; (iii) allow access to,
provide, divulge or make available the Protected Materials to any user
other than Client Users; (iv) write or develop any derivative works
based
upon
the
Protected
Materials,
except
for
authorized
Configurations; (v) modify, adapt, translate or otherwise make any
changes to the Protected Materials or any part thereof; (vi) use the
Protected Materials to provide processing services to third parties, or
otherwise use the same on a ‘service bureau’ basis, other than on
behalf of Owner, if applicable; (vii) disclose or publish, without MRI’s
prior written consent, performance or capacity statistics or the results
of any benchmark test performed on the Protected Materials; or (viii)
otherwise use or copy the Protected Materials except as expressly
permitted herein.
6.3
Client Data. Notwithstanding anything in this Agreement to the
contrary, Client and/or Owner retains sole and exclusive ownership to
any and all Client Data.
6.4
License Grant by Client. Client grants to MRI a non-exclusive,
royalty free license to use equipment, software, Client Data or other
material of Client solely for the purpose of performing MRI’s obligations
under the Agreement.
6.5
Enforcement. Client shall (i) ensure that all users of Protected
Materials comply with the terms and conditions of the Agreement, (ii)
promptly notify MRI of any actual or suspected violation thereof and
(iii) cooperate with MRI with respect to investigation and enforcement
of the Agreement. The Software contains code-based protections that
serve to prevent and remedy violations of the license restrictions. If the
Software is hosted on Client’s technology systems, MRI may access the
Software remotely in order to ensure Client’s compliance with the
license terms and other restrictions of the Agreement.
7.
INDEMNIFICATION
7.1
Intellectual Property Infringement. MRI will defend or settle,
at its option and expense, any action, suit or proceeding brought
against Client by a third party that the MRI Software or SaaS Services
infringe a third party’s USA patent, registered copyright, or registered
trademark (“IP Claim”). MRI will indemnify Client against all damages
and costs finally awarded or those costs and damages agreed to in a
monetary settlement of such action, which are attributable exclusively
to such IP Claim, provided that Client: (i) promptly gives written notice
of the IP Claim to MRI; (ii) gives MRI sole control of the defense and
settlement of the IP Claim; (iii) provides MRI, at MRI’s expense, with all
available information and assistance relating to the IP Claim and
cooperates with MRI and its counsel; (iv) does not compromise or settle
such IP Claim; and (v) is not in material breach of any agreement with
MRI.
7.2
Indemnification Exceptions. MRI has no obligation to the
extent any IP Claim results from: (i) Client having modified the MRI
Software or SaaS Services or used a release other than a current
unaltered release of the MRI Software, if such an infringement would
have been avoided by the use of a current unaltered release of the MRI
Software, (ii) Content and/or any Third Party Software, (iii)
Configurations or (iv) the combination, operation or use of the MRI
Software or SaaS Services with software or data not provided by MRI.
7.3
Infringement Remedies. If it is adjudicated that an
infringement of the MRI Software or SaaS Service by itself and used in
accordance with the Agreement infringes any USA patent, registered
copyright, or registered trademark, MRI shall, at its option: (i) procure
for Client the right to continue using the MRI Software or SaaS Service;
(ii) replace or modify the same so it becomes non-infringing; or (iii) MRI
shall terminate the applicable license or Service and shall refund to
Client (a) with respect to a perpetual license to the MRI Software, the
license fees for the affected Software, less 1/12 thereof for each month
or portion thereof since the original Effective Date, or (b) with respect
to SaaS Services and/or limited term Software licenses, the pre-paid
portion of the SaaS Services or term license fees paid to MRI for the
affected MRI Software or Service. SECTIONS 7.1, 7.2 AND 7.3 STATE
MRI’S ENTIRE OBLIGATION TO CLIENT AND CLIENT’S SOLE AND
EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT.
7.4
Client Indemnification. Client shall defend MRI against any
claim, demand, suit, or proceeding made or brought against MRI by a
third party arising out of or related to (i) the Client Data; (ii) Client’s or
its users’ use of the Software or the SaaS Services in violation of the
Agreement; (iii) Client or any user infringing or misappropriating the
Intellectual Property rights of a third party or violating applicable law;
or (iv) Client’s or its users’ use or misuse of the Software or SaaS
Service or Client’s or its users’ use or misuse of the Client Data
(including, without limitation, accessing, providing access, using or
distributing the Client Data) (each of the above a “Client Claim”).
Client shall indemnify MRI for all damages and costs finally awarded
against, and for reasonable attorneys’ fees incurred by, MRI in
connection with any Client Claim, or those costs and damages agreed to
in a monetary settlement of such Client Claim; provided that MRI
(a) promptly gives Client written notice of the Client Claim, (b) gives
Client sole control of the defense and settlement of the Client Claim
(provided that Client may not settle or defend any Client Claim unless it
unconditionally releases MRI of all liability), and (c) provides Client all
reasonable assistance, at Client’s cost. For purposes of this Section 7.4
only, “MRI” shall include MRI and its Affiliates, and each of their
members, owners, officers, directors, employees, agents, successors
and assigns.
8
DISCLAIMERS AND LIMITATION OF LIABILITY.
8.1
Disclaimer of Warranties. THE WARRANTIES, IF ANY, SET
FORTH IN THE SCHEDULES ARE IN LIEU OF, AND MRI, ITS LICENSORS AND
SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED
BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR
WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT
ANY SOFTWARE, SAAS SERVICE, CONTENT, DELIVERABLES OR OTHER
SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION
OR THAT ALL ERRORS WILL BE CORRECTED; (ii) ANY AND ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT, (iii) ANY WARRANTY THAT
CONTENT AND/OR THIRD PARTY SOFTWARE WILL BE ACCURATE,
RELIABLE AND ERROR-FREE AND (iv) ANY AND ALL IMPLIED WARRANTIES
ARISING
FROM
STATUTE,
COURSE
OF
DEALING,
COURSE
OF
PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT OR
INFORMATION GIVEN BY MRI, ITS AFFILIATES, CONTRACTORS OR
EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED
HEREIN. ALTHOUGH CERTAIN OF THE SOFTWARE AND CONTENT MAY BE
DESIGNED TO HELP CLIENTS COMPLY WITH APPLICABLE LAWS AND
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REGULATIONS, MRI HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT
TO THE SUFFICIENCY OR ACCURACY OF THE SOFTWARE AND CONTENT IN
THIS REGARD; MOREOVER, VARIOUS STATE LAWS MAY APPLY, AND THE
SOFTWARE DOES NOT INCORPORATE STATE LAW REQUIREMENTS. ALL
SUCH LAWS AND REGULATIONS MAY CHANGE FROM TIME TO TIME, AND
THE SOFTWARE AND CONTENT MAY NOT BE UPDATED TO REFLECT SUCH
CHANGES. CLIENT SHOULD CONSULT AN ATTORNEY WITH RESPECT TO
COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.
8.2
Connection Over Internet. CLIENT ACKNOWLEDGES THAT USE
OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR
UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS
AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND CLIENT DATA.
ACCORDINGLY, MRI CANNOT AND DOES NOT GUARANTY THE PRIVACY,
SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED
OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.
8.3
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY
LAW, MRI’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES AWARDED
UNDER THE AGREEMENT) TO CLIENT FOR ANY CLAIM BY CLIENT OR ANY
THIRD PARTIES UNDER THE AGREEMENT, EXCLUDING LIABILITY
PURSUANT TO SECTION 7 (Indemnification), WILL BE LIMITED TO (i)
WITH RESPECT TO PERPETUAL SOFTWARE LICENSES OR PROFESSIONAL
SERVICES, THE FEES PAID BY CLIENT FOR THE SOFTWARE OR SERVICE
WHICH IS THE SUBJECT MATTER OF THE CLAIM LESS 1/36 THEREOF FOR
EACH MONTH OR PORTION THEREOF SINCE THE EFFECTIVE DATE AND (II)
WITH RESPECT TO SAAS SERVICES, TERM LICENSES AND MAINTENANCE
AND SUPPORT,THE FEES PAID FOR THE PRIOR TWELVE (12) MONTHS FOR
THE SOFTWARE OR SERVICE WHICH IS THE SUBJECT MATTER OF THE
CLAIM.
8.4
Third Party Software and Content. WITH RESPECT TO ANY
THIRD PARTY SOFTWARE OR CONTENT PROVIDED TO CLIENT UNDER THE
AGREEMENT, INCLUDING ANY MODULES OF THE SAAS SERVICES THAT
MAY CONTAIN THIRD PARTY SOFTWARE OR CONTENT, CLIENT AGREES
THAT (I) MRI MAY ADD AND/OR SUBSTITUTE FUNCTIONALLY EQUIVALENT
PRODUCTS FOR ANY THIRD PARTY SOFTWARE IN THE EVENT OF
PRODUCT UNAVAILABILITY, END-OF-LIFE, OR CHANGES TO SOFTWARE
REQUIREMENTS; (II) THE PROVISION OF CONTENT IS SUBJECT TO
AVAILABILITY FROM THIRD PARTY CONTENT PROVIDERS AND MRI SHALL
HAVE NO LIABILITY SHOULD SUCH CONTENT BECOME UNAVAILABLE FOR
ANY REASON OR IS NO LONGER AVAILABLE UNDER REASONABLE
COMMERCIAL TERMS; (III) CLIENT’S USE OF ANY THIRD PARTY SOFTWARE
SHALL BE SUBJECT TO, AND CLIENT AND USERS SHALL COMPLY WITH,
THE AGREEMENT AND ANY APPLICABLE THIRD PARTY EULAS; (IV) MRI
MAKES NO WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE
OR ANY CONTENT; AND (V) CLIENT’S SOLE REMEDY WITH RESPECT TO
SUCH THIRD PARTY SOFTWARE SHALL BE PURSUANT TO THE ORIGINAL
LICENSOR’S WARRANTY, IF ANY, TO MRI, TO THE EXTENT PERMITTED BY
THE ORIGINAL LICENSOR. CONTENT AND THIRD PARTY SOFTWARE ARE
MADE AVAILABLE ON AN “AS IS, AS AVAILABLE” BASIS.
8.5
No Special Damages. IN NO EVENT WILL MRI BE LIABLE TO
CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY,
PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME,
GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER
BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT
(INCLUDING
NEGLIGENCE),
PRODUCT
LIABILITY
OR
OTHERWISE,
WHETHER OR NOT MRI HAS PREVIOUSLY BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
8.6
Time to Bring Claim. NO CLAIM ARISING OUT OF THE
AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT AGAINST MRI
MORE THAN THE SHORTER OF ONE YEAR OR THE MINIMUM PERIOD
ALLOWED BY LAW AFTER THE CAUSE OF ACTION HAS OCCURRED.
8.7
Survival. THIS SECTION SHALL SURVIVE FAILURE OF ANY
EXCLUSIVE REMEDY.
9.
TERM AND TERMINATION
9.1
Term. The term of this Master Agreement shall commence on
the Effective Date set forth above and shall continue in full force and
effect until the expiration or termination of all Schedules, unless
otherwise terminated earlier as provided hereunder.
9.2
Termination. Either Party may terminate the Agreement
including all Schedules immediately upon written notice in the event
that the other Party commits a non-remediable material breach of the
Agreement, or if the other Party fails to cure any remediable material
breach or provide a written plan of cure acceptable to the non-
breaching Party within 30 days of being notified in writing of such
breach, except for breach of Section 3.1 (Fees and Payment Terms)
which shall have a ten (10) day cure period.
Where a Party has a right to terminate the Agreement, the non-
breaching Party may at its discretion either terminate the Agreement or
the applicable Schedule. Schedules that are not terminated shall
continue in full force and effect under the terms of this Master
Agreement.
9.3
Post-Termination Obligations. Following termination of the
Agreement or a Schedule (for whatever reason), Client shall certify that
it has returned or destroyed all copies of the applicable Software,
Content and Confidential Information of MRI and acknowledges that its
rights to use the same are relinquished. Termination of this Agreement
for any reason shall not excuse Client’s obligation to pay in full any and
all amounts due, nor shall termination by MRI result in a refund of fees
paid. Client shall use its commercially reasonable efforts to remove all
Client Data from any Software or SaaS Service prior to termination of
the Agreement or applicable Schedule. Client may engage MRI to assist
Client in removing such Client Data at MRI’s then standard rates. If any
Client Data remains in the Software or SaaS Service more than 30 days
after the effective date of termination, MRI may, in its sole discretion
and without notice, delete any and all Client Data. At any time before
or after termination, if an Owner requests that any Client Data be
provided directly to such Owner, Client agrees that MRI may transfer
such Client Data directly to such Owner, and that MRI shall not be liable
for any damages that result from the transfer of Client Data to an
Owner.
10.
GENERAL PROVISIONS
10.1
Publicity. Client may not use the name, logo or otherwise of
MRI in any publicity without the prior written approval of MRI, which
approval shall not be unreasonably withheld. Each Party shall complete
its review of any proposed materials or activities submitted by the
other Party within five (5) business days of its receipt of such materials
from the other Party. Client agrees it will participate in a joint press
release within thirty (30) days of the execution of this Master
Agreement.
10.2
Force Majeure. Neither Party shall incur any liability to the
other Party on account of any loss, claim, damage or liability to the
extent resulting from any delay or failure to perform all or any part of
this Agreement (except for payment obligations), if and to the extent
such delay or failure is caused, in whole or in part, by events,
occurrences, or causes beyond the control and without any negligence
on the part of the Party seeking protection under this Section. Such
events, occurrences, or causes shall include, without limitation, acts of
God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire or
explosions (“Force Majeure Events”). Dates by which performance
obligations are scheduled to be met will be extended for a period of
time equal to the time lost due to any delay so caused.
10.3
Assignment. MRI may assign the Agreement and all of its rights
and obligations herein without Client’s approval to its parent company
or other affiliated company, to a successor by operation of law, or by
reason of the sale or transfer of all or substantially all of its stock or
assets to another entity. Neither Party may otherwise assign or transfer
the Agreement without the prior written consent of the other Party.
10.4
Notice of U.S. Government Restricted Rights. If the Client
hereunder is the U.S. Government, or if the Software is acquired
hereunder on behalf of the U.S. Government with U.S. Government
federal funding, notice is hereby given that the Software is commercial
computer software and documentation developed exclusively at private
expense and is furnished as follows: “U.S. GOVERNMENT RESTRICTED
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RIGHTS. Software delivered subject to the FAR 52.227-19. All use,
duplication and disclosure of the Software by or on behalf of the U.S.
Government shall be subject to this Agreement and the restrictions
contained in subsection (c) of FAR 52.227-19, Commercial Computer
Software - Restricted Rights (June 1987)”.
10.5
Export. Client shall comply fully with all relevant export laws
and regulations of the United States and other applicable jurisdictions
to ensure that the Software is not exported, directly or indirectly, in
violation of those laws.
10.6
Non-solicitation. During the term of this Master Agreement and
for a period of one year following its termination, Client will not
employ or solicit for employment directly or through other parties,
without the MRI’s written permission, any individual employed by MRI.
If a Party breaches this Section 10.6, such Party shall pay to the non-
breaching Party a sum equal to 150% of the hired employee’s annual
salary while such employee was employed by the non-breaching Party,
and such payment shall be made within 30 days of hiring such
employee.
10.7
Compliance. During the term of this Master Agreement and for a
period of one year following its termination, Client shall maintain and
make available to MRI records sufficient to permit MRI or an
independent auditor retained by MRI to verify, upon ten days’ written
notice, Client’s full compliance with the terms and requirements of the
Agreement. Such audit shall be performed during regular business
hours. If such verification process reveals any noncompliance by Client
with the Agreement, Client shall reimburse MRI for the reasonable costs
and expenses of such verification process (including, but not limited to
the fees of an independent auditor) incurred by MRI, and Client shall
promptly cure any such noncompliance, including without limitation
through the payment of any and all fees owed to MRI during the period
of noncompliance; provided, however, that the obligations under this
Section do not constitute a waiver of MRI’s termination rights. Client
acknowledges that the Software may include a license manager
component to track usage of the Software and agrees not to impede,
disable or otherwise undermine such license manager’s operation.
10.8
Notices. Any notice required or permitted to be sent under the
Agreement shall be delivered by hand, by overnight courier, or by
certified mail, return receipt requested, to the address of the Parties
first set forth in the Agreement or to such other address of the Parties
designated in writing in accordance with this subsection.
10.9
Relationship. The Agreement is not intended to create a
partnership, franchise, joint venture, agency, or a fiduciary or
employment relationship. Neither Party may bind the other Party or
act in a manner which expresses or implies a relationship other than
that of independent contractor.
10.10 Invalidity. If any provision of the Agreement shall be held to be
invalid,
illegal
or
unenforceable,
the
validity,
legality
and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
10.11 Survival. The following provisions will survive any termination
or expiration of the Agreement or a Schedule: Sections 1, 2, 3, 4, 6.1,
6.2, 6.5, 7, 8, 9, and 10.
10.12 No Waiver. Any waiver of the provisions of the Agreement or of
a Party’s rights or remedies under the Agreement must be in writing
and include a signature by an authorized representative of each Party
to be effective. Any such waiver shall constitute a waiver only with
respect to the specific matter described in such writing and shall in no
way impair the rights of the Party granting such waiver in any other
respect or at any other time. The waiver by either of the Parties hereto
of a breach or of a default under any of the provisions of the Agreement
shall not be construed as a waiver of any other breach or default of a
similar nature, or as a waiver of any of such provisions, rights or
privileges hereunder. The rights and remedies herein provided are
cumulative and none is exclusive of any other, or of any rights or
remedies that any Party may otherwise have at law or in equity.
Failure, neglect, or delay by a Party to enforce the provisions of the
Agreement or its rights or remedies at any time, shall not be construed
and shall not be deemed to be a waiver of such Party’s rights under the
Agreement and shall not in any way affect the validity of the whole or
any part of the Agreement or prejudice such Party’s right to take
subsequent action.
10.13 Entire Agreement. The Agreement constitutes the Parties’
entire agreement relating to its subject matter. It cancels and
supersedes
all
prior
or
contemporaneous
oral
or
written
communications, agreements, requests for proposals, proposals,
conditions, representations, and warranties, or other communication
between the Parties relating to its subject matter as well as any prior
contractual agreements between the Parties. Client hereby releases
and discharges MRI from any and all claims for relief, causes of action,
or demands arising out of or in any way relating to any event, act or
occurrence prior to the Effective Date of this Agreement. No
modification to the Agreement will be binding unless in writing and
includes a signature by an authorized representative of each Party. All
pre-printed terms of any Client purchase order or other Client business
processing document shall have no effect. Each Party represents and
warrants to the other that: (i) it has full power, authority, and legal
right to execute, deliver, and perform this Agreement, (ii) each signor
is duly authorized and has legal capacity to execute and deliver this
Agreement and (iii) this Agreement constitutes the legal, valid, and
binding obligation of the Parties, enforceable in accordance with its
terms.
10.14 No Third Party Beneficiaries. This Agreement is for the benefit
of the Parties and their successors and permitted assigns, and does not
confer any rights or benefits on any third party, including any employee
of a Party, any client of a Party, or any employee of a client of a Party.
Notwithstanding the above, the Parties acknowledge that all rights and
benefits afforded to MRI under the Agreement shall apply equally to the
owner of the Third Party Software with respect to the Third Party
Software, and such third party is an intended third party beneficiary of
the Agreement, with respect to the Third Party Software.
10.15 Governing Law and Venue. The Agreement shall be governed by
and construed in accordance with the laws of the State of Ohio without
giving effect to its principles of conflict of laws. Any dispute shall be
litigated in the state or federal courts located in the State of Ohio to
whose exclusive jurisdiction the Parties hereby consent. For purposes of
establishing jurisdiction in Ohio under this Agreement, each Party
hereby waives, to the fullest extent permitted by applicable law, any
claim that: (i) it is not personally subject to the jurisdiction of such
court; (ii) it is immune from any legal process with respect to it or its
property; and (iii) any such suit, action or proceeding is brought in an
inconvenient forum. Each Party irrevocably waive its rights to trial by
jury in any action or proceeding arising out of or relating to this
Agreement or the transactions relating to its subject matter. The
Parties agree that this contract is not a contract for the sale of goods;
therefore, the Agreement shall not be governed by any codification of
Article 2 or 2A of the Uniform Commercial Code, or any codification of
the Uniform Computer Information Technology Act (“UCITA”), or any
references to the United National Convention on Contracts for the
International Sale of Goods.
10.16 Legal Fees and Costs. In the event of a dispute between the
Parties regarding the enforcement of the Agreement, the prevailing
Party in such dispute will be entitled to collect from the other Party the
prevailing Party's reasonable legal fees and costs.
10.17 Order of Precedence. To the extent any terms and conditions
of this Master Agreement conflict with the terms and conditions of any
Schedule, the provisions of this Master Agreement shall control unless
the Schedule expressly states the intent to supersede a specific portion
of the Master Agreement.
In the event of a conflict between an Order Document and the Master
Agreement, the Master Agreement shall prevail, provided, however,
that such standard variable terms such as price, quantity, license scope
and License Metrics, tax exempt status, payment terms, shipping
instructions and the like shall be specified on each Order Document. All
pre-printed terms of any Client purchase order or other business
processing document shall have no effect.
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10.18 Headings and Drafting. The headings in the Agreement shall
not be used to construe or interpret the Agreement. The Agreement
shall not be construed in favor of or against a Party based on the author
of the document.
10.19 Counterparts. The Master Agreement and each Schedule may
be executed in one or more counterparts, each of which shall constitute
an enforceable original of the Agreement, and that facsimile and/or pdf
scanned copies of signatures shall be as effective and binding as original
signatures.
10.20 Treatment in the Event of Bankruptcy of Client. The Parties
acknowledge and agree that this Agreement is an executory contract as
such term is defined in section 365 of the United States Bankruptcy
Code (“USBC”). The Parties further acknowledge and agree that the
Agreement does not provide a license of intellectual property as
defined in section 101(35) of the USBC and that the provisions of
Section 365(n) of the USBC are therefore not applicable. Client
acknowledges that MRI will be harmed if this Agreement was assigned to
a competitor, direct or indirect, or any other party whose use of MRI
Software or Services pursuant to the Agreement would be detrimental
to the business and rights of MRI, and Client hereby grants MRI the right
to consent to any proposed assignment of this Agreement in a
bankruptcy and that the rights of consent to the assignment provided in
section 365(c)(1) of the USBC shall be applicable to any proposed
assignment of this Agreement in any bankruptcy case filed by Client.
***************************************************************************************************************************************
END OF MASTER AGREEMENT
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Page 8 of 11
SAAS SERVICES SCHEDULE
This SaaS Services Schedule is entered into between MRI Software LLC (“MRI”) and the Client named in the Order Document, and the authorized
representatives of the Parties hereby execute this SaaS Services Schedule to be effective as of the Effective Date, as defined in the Order
Document.
__________________________________________________________________________________________________________________
1.
DEFINITIONS
Additional defined terms specific to this Schedule:
“Error”: a material failure of a hosted MRI Software to conform to its
Functional Specifications that is reported by Client to and replicable
by MRI.
“Malicious Code: computer viruses, worms, time bombs, Trojan horses
and other harmful or malicious code, files, scripts, agents or
programs.
2.
TERM; RENEWAL; TERMINATION.
2.1
Term and Renewal. SaaS Services commence on the date
specified in the Order Document and continue for the term set forth in
the Order Document (“Initial Term”). Following the end of the Initial
Term, Client shall have the option to renew the SaaS Services twice
for one (1) year renewal terms at MRI’s then-current pricing (each
renewal a “Renewal Term”) by providing prior written notice to MRI
of its choice to exercise such option, unless either Party gives written
notice at least sixty (60) calendar days prior to the end of the Initial
Term or any Renewal Term, as applicable, of its intention to not
renew the SaaS Service. Following the end of the Renewal Terms, the
Agreement shall automatically expire, and Client will lose all access to
the SaaS Services, unless the Parties have an executed agreement in
place to continue services. For all Renewal Terms, Client shall be
required to migrate to the then latest Upgrade of the hosted Software.
The pricing for the first twelve (12) months of any Renewal Term shall
be provided by MRI in writing no less than ninety (90) days prior to the
end of the Initial Term or any Renewal Term. Notice to not renew the
Initial Term or any Renewal Term shall be given in accordance with
section 10.8 of the Master Agreement and shall be deemed given upon
delivery to the non-cancelling Party. For the purposes of the pricing
notice in this Section, email or first-class mail will suffice. The Initial
Term and Renewal Terms are collectively referred to as the “Term”.
2.2
Termination. This Schedule may be terminated for cause by
either Party in accordance with Section 9 of the Master Agreement.
Sections 1 and 2 hereof and the surviving provisions of the Master
Agreement shall survive expiration or termination of this Schedule.
Upon termination of the SaaS Services, and provided Client is not in
breach of any of its obligations under the Agreement, MRI will, upon
Client’s written request and payment of the applicable fees, provide a
backup copy of Client’s Data (a then-current fee schedule will be
provided upon request).
3.
GRANT OF USE
Subject to the timely payment of the applicable fees, the terms of this
Schedule and the Master Agreement, MRI grants to Client, for the
Term, the right to access and use the SaaS Services, as more fully
described in the Order Document, solely for Client’s internal business
purposes. Such access and use is subject to the terms of the Master
Agreement, including without limitation the restrictions set forth in
Section 6.2 of the Master Agreement.
SaaS Services purchased may be accessed by or used to manage no
more than the number of License Metrics specified in the Order
Document. Additional License Metrics may be purchased under an
additional Order Document at the pricing in effect at the time the
additional License Metrics are added, prorated for the remainder of
the then-current Term. The added License Metrics shall have the same
term as the then applicable Term. Unless stated otherwise in the
Order Document, fees are based on Services and License Metrics
purchased and not actual usage.
4.
SERVICES
4.1
SaaS Environment. Client is solely responsible for obtaining
and maintaining at its own expense, all equipment needed to access
the SaaS Services, including but not limited to Client’s Internet access.
4.2
SaaS Service Availability. MRI shall use commercially
reasonable efforts to make the SaaS Services available twenty-four
(24) hours a day, seven (7) days a week, except for: (a) Scheduled
Maintenance; (b) Client Error Incidents; (c) Emergency Maintenance;
(d) any unavailability caused by circumstances beyond MRI’s
reasonable control, including without limitation, Force Majeure
Events; and (e) Internet service provider failures or delays. Scheduled
Maintenance is defined as any maintenance performed during MRI’s
then-current
standard
maintenance
windows and
any
other
maintenance of which Client is given at least forty-eight (48) hours
advance notice. MRI may perform maintenance on some or all of the
SaaS Service in order to upgrade hardware or software that operates
or supports the SaaS Service, implement security measures, or address
any other issues it deems appropriate for the continued operation of
the SaaS Service. Client Error Incident is defined as any SaaS Service
unavailability related to Client’s applications, Client Data, or Client’s
equipment, or the acts or omissions of any user of the SaaS Service.
Emergency Maintenance means downtime of the SaaS Service due to
the application of urgent patches or fixes, or other urgent
maintenance, recommended by MRI’s vendors, that is performed
outside of Scheduled Maintenance.
Client acknowledges that MRI does not control the transfer of data
over telecommunications facilities, including the Internet. MRI does
not warrant secure operation of the SaaS Services or that it will be
able to prevent third party disruptions of such Services. Client
acknowledges further that the SaaS Services may be subject to
limitations, delays, and other problems inherent in the use of the
internet and electronic communications. MRI is not responsible for
any delays, delivery failures, or other damage resulting from such
problems.
4.3
Maintenance and Support Services. Subject to Client’s
timely payment of applicable SaaS Services fees, MRI will provide to
Client the Maintenance and Support services for the Maintenance and
Support plan indicated in the Order Document, under MRI’s
Maintenance and Support policies in effect at the time the Services
are provided for the level of Services ordered. MRI shall manage and
install all Updates and Upgrades of the hosted Software.
Updates are provided when and if available, and MRI is under no
obligation to develop any future programs or functionality. MRI is
under no obligation to provide Maintenance and Support with respect
to: (i) Software that has been altered or modified by anyone other
than MRI or its licensors; (ii) a release for which Maintenance and
Support has been discontinued; (iii) Software used other than in
accordance with the Documentation; (iv) discrepancies that do not
significantly impair or affect the operation of the SaaS Services; (v)
any systems or programs not supplied by MRI; or (vi) Configurations.
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For the avoidance of doubt, Updates provided under Maintenance and
Support services do not include custom development, Upgrades, or
Configurations regardless of whether such Configurations are
performed by MRI or by Client. MRI reserves the right to charge Client
for any reintegration work required to make Configurations compatible
with future versions/releases.
If an Error was corrected or is not present in a more current version of
the Software, MRI shall have no obligation to correct such Errors in
prior versions of the Software.
Subject to timely payment of the applicable fees, Maintenance and
Support is provided for all Software, unless otherwise noted in the
Order Document; provided, however, that with respect to Third Party
Software, MRI’s obligation is limited to using commercially reasonable
efforts to obtain Maintenance and Support from the third party owner
of such Software.
4.4
Backups and Restoration Services. Provided Client is not
otherwise in breach of the Agreement, MRI will provide backup copies
and/or database restoration, upon written request and subject to
Client’s payment of applicable fees for such service (a then-current
fee schedule will be provided upon request).
4.5
Exclusions. Fees for SaaS Services do not include
implementation, training and other Professional Services, such as
project management, conversion, report writing, and external systems
interface development. It is Client’s responsibility to ensure that all
appropriate users receive initial training services sufficient to enable
Client to effectively use the SaaS Services. Failure to do so could
result in increased service call fees if such service calls are deemed
excessive as a result of insufficient training, at MRI’s discretion.
5.
CERTAIN OBLIGATIONS
5.1
Passwords; Security. Client is responsible for maintaining
the confidentiality of all passwords and for ensuring that each
password is used only by the authorized user. Client is entirely
responsible for any and all activities that occur under Client's account.
Client agrees to immediately notify MRI of any unauthorized use of
Client's account or any other breach of security known to Client. MRI
shall have no liability for any loss or damage arising from Client's
failure to comply with these requirements. MRI will maintain Client
passwords as confidential and will not disclose them to third parties.
5.2
Client Data. Client shall be solely responsible for the
accuracy, quality, integrity and legality of Client Data and of the
means by which it acquired Client Data.
5.3
Acceptable Use. Client acknowledges and agrees that MRI
does not monitor or police the content of communications or data of
Client or its users transmitted through the Services, and that MRI shall
not be responsible for the content of any such communications or
transmissions. Client shall use the Services exclusively for authorized
and legal purposes, consistent with all applicable laws and regulations.
Client agrees not to post or upload any content or data which (a) is
libelous, defamatory, obscene, pornographic, abusive, harassing or
threatening; (b) contains Malicious Code; (c) violates the rights of
others, such as data which infringes on any intellectual property rights
or violates any right of privacy or publicity; or (d) otherwise violates
any applicable law. Client further agrees not to interfere or disrupt
networks connected to the Services, not to interfere with another
entity's use and enjoyment of similar services and to comply with all
regulations, policies and procedures of networks connected to the
SaaS Services. MRI may remove any violating content posted on the
Services or transmitted through the Services, without notice to Client.
MRI may suspend or terminate any user’s access to the SaaS Services
upon notice in the event that MRI reasonably determines that such
user has violated the terms and conditions of this Schedule.
6.
WARRANTIES AND DISCLAIMER
6.1
Limited Warranty. During the Term, MRI warrants that the
hosted MRI Software supplied to Client as part of the SaaS Services will
be free of Errors.
6.2
Remedies. If the hosted MRI Software does not perform as
warranted, MRI shall use commercially reasonable efforts to correct
such Errors, as Client's exclusive remedy for any claim under this
warranty. Client shall promptly notify MRI in writing of its claim.
Provided that such claim is determined by MRI to be MRI’s
responsibility, MRI shall, within thirty (30) days of its receipt of
Client's written notice, (i) correct such Error; (ii) provide Client with a
plan reasonably acceptable to Client for correcting the Error; or (iii) if
neither (i) nor (ii) can be accomplished with reasonable commercial
efforts from MRI, then MRI or Client may terminate the affected SaaS
Service, and Client will be entitled to a refund of the pre-paid portion
of the fees paid for the affected SaaS Service. The preceding warranty
cure shall constitute MRI’s entire liability and Client's exclusive
remedy for cure of the warranty set forth herein. If Client elects not
to terminate the SaaS Service, Client waives all rights for the
applicable warranty cure set forth herein.
6.3
Exclusions. MRI is not responsible for any claimed breach of
any warranty set forth in Section 6.1 caused by: (i) modifications made
to the hosted MRI Software by anyone other than MRI; (ii) the
combination, operation or use of the hosted MRI Software with any
items not certified by MRI; (iii) MRI’s adherence to Client’s
specifications or instructions; (iv) Errors caused by or related to
internet connections; (v) Client deviating from the hosted MRI
Software operating procedures described in the Documentation; or (vi)
Errors caused by Configurations.
***************************************************************************************************************************************
END OF SAAS SERVICES SCHEDULE
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Page 10 of 11
PROFESSIONAL SERVICES SCHEDULE
This Professional Services Schedule is entered into between MRI Software LLC (“MRI”) and the Client named in the Order Document, and the
authorized representatives of the Parties hereby execute this Professional Services Schedule to be effective as of the Effective Date, as defined in
the Order Document.
_______________________________________________________________________________________________________________________________
1.
SERVICES
1.1
Work Authorizations/Statements of Work. MRI will perform
the mutually agreed upon Professional Services for Client described in
one or more work orders, work authorizations, statements of work or
Order Documents (individually and collectively an “SOW”) as the parties
may agree to in writing from time to time. Each SOW, once executed
by the authorized representatives of the parties, shall become a part of
the Agreement. Except as expressly stated elsewhere in this Schedule,
in the event of a conflict between the terms of this Schedule and the
terms of a SOW, the terms of this Schedule shall prevail.
1.2
Change Orders. Either party may propose a change order to
add to, reduce or change the Professional Services ordered in the SOW.
Each change order shall specify the change(s) to the Professional
Services or deliverables, and the effect on the time of performance and
on the fees owed to MRI, due to the change. Once executed by both
parties, a change order shall become a part of the SOW.
1.3
Costs. Professional Services shall be provided on a time and
materials (“T&M”) basis at MRI’s T&M rates in effect at the time the
Professional Services are performed, unless otherwise specified in the
applicable Statement of Work. On a T&M engagement, if an estimated
total amount is stated in the applicable SOW, that amount is solely a
good faith estimate for Client's budgeting and MRI’s resource scheduling
purposes and not a guarantee that the work will be completed for that
amount. If Client wishes the MRI personnel to perform Professional
Services at Client’s site, Client agrees it shall give MRI at least two (2)
weeks’ prior notice so MRI can make appropriate travel arrangements.
Professional Services performed at Client’s site shall be billed to Client
in minimum increments of eight (8) hours per day per MRI employee.
Fees are based on services, including training services, provided during
normal MRI business hours, Monday through Friday, 8:00 a.m. - 7:00
p.m. local time (MRI holidays excluded). Professional Services provided
by MRI outside of normal MRI business hours will be subject to a
premium service charge of one and one-half of the standard MRI list
price for such services. Except as otherwise provided in Section 4.1
herein with respect to training services, if Client cancels a Professional
Services engagement specified in an approved SOW less than ten (10)
business days before the scheduled start date for such Professional
Services, Client shall pay twenty-five percent (25%) of the total
estimated costs for Professional Services scheduled for performance
between five (5) and ten (10) business days of MRI’s receipt of Client’s
cancellation and fifty percent (50%) of any Professional Services
scheduled for performance within five (5) business days of such receipt.
1.4
Delays/Costs Overruns. In the event of any delay in Client’s
performance of any of the obligations set forth herein or any other
delays caused by Client, the milestones, fees and date(s) set forth in
the SOW shall be adjusted on a T&M basis as reasonably necessary to
account for such delays, and the adjustment shall be made by change
order in accordance with the provisions of Section 1.2 above.
2.
PROJECT MANAGEMENT
2.1
Responsibility. MRI shall be responsible for securing,
managing, scheduling, coordinating and supervising MRI personnel,
including its subcontractors, in performing the Professional Services.
2.2
Cooperation. Client shall provide MRI with good faith
cooperation and access to such information, facilities, personnel and
equipment as may be reasonably required by MRI in order to provide the
Professional Services, including, but not limited to, providing security
access, information, and software interfaces to Client’s applications,
and Client personnel, as may be reasonably requested by MRI from time
to time. Client acknowledges and agrees that MRI’s performance is
dependent upon the timely and effective satisfaction of Client’s
responsibilities hereunder and timely decisions and approvals of Client
in connection with the Professional Services. MRI shall be entitled to
rely on all decisions and approvals of Client.
2.3
Subcontractors. MRI may subcontract or delegate any work
under any SOW to any third party without Client’s prior written
consent; provided, however, that MRI shall remain responsible for the
performance, acts and omissions of any such subcontractors.
2.4
Client Data. Client Data must be provided to MRI in a format
approved by MRI or additional charges will apply. Client is responsible
for the accuracy and completeness of its information and Client Data.
MRI’s performance is dependent on Client’s timely provision of accurate
and complete resources and information, including but not limited to
detailed, precise and clear specifications for any deliverables.
2.5
Remote Access. For installation of the System and for any
Support of the System, Client shall ensure that MRI’s assigned technical
personnel are able to access the System remotely. Client shall be
responsible for providing MRI access through any Client security
measures. MRI alone shall decide whether access to the System is
sufficient for installation purposes. Certain functionality of the System
may require connections to or interaction with MRI after such System is
running on Client’s infrastructure, and Client agrees to permit and
facilitate such connections and interaction. “System” means the total
complement of hardware and Software furnished and/or maintained by
MRI.
2.6
Testing of Projects. Client shall test any deliverables, and
notify MRI of all deficiencies relative to the applicable specifications for
such work set forth in the applicable SOW within thirty (30) calendar
days following MRI’s delivery of such deliverables to Client
(“Notification Period”). Subject to Client’s timely notification and
provided that the deficiencies are MRI’s responsibility, MRI will re-
perform the applicable Professional Services as required to meet the
applicable specifications at no additional charge.
3.
LICENSE AND OWNERSHIP
3.1
Ownership. Without prejudice to the provisions of Section 6
(Limited Rights and Ownership) of the Master Agreement, all
Intellectual Property including all copies thereof in any Software, other
products furnished by MRI and the results of the Professional Services
performed by MRI including (without limitation) all deliverables,
documentation, training materials, Configurations and all Intellectual
Property embodied therein shall, subject to Section 3.2 below, vest
solely and absolutely in MRI or its licensors. MRI may access the System
remotely in order to copy Configurations to the Software or to
otherwise ensure Client’s compliance with the terms of this Section 3.1
and the Agreement.
3.2
Limited License. MRI grants Client, upon full payment of the
applicable fees and charges, during the Term and subject to the
restrictions set forth in Section 6.2 of the Master Agreement, a
personal, nontransferable, nonexclusive, nonsublicensable, limited
license to use the deliverables solely for Client’s own internal business
needs.
4.
SUPPLEMENTAL TERMS FOR TRAINING SERVICES
4.1
General. “Training Courses” are defined as: classroom-
based, live virtual, and/or self-paced e-learning courses provided by
MRI’s training division called MRI Learning Solutions. Training Courses
and their respective prices, policies and schedules are subject to
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Page 11 of 11
change without notice. Training Courses shall be provided by MRI to
Client pursuant to the terms of an SOW. “Named Users” as used herein
are defined as Client Users listed in the SOW that shall be eligible to
receive Training Courses.
4.2
Cancellation and Transfer Policies.
4.2.1
Client
Training
Course
Cancellation
Policy.
“Client
Training Courses” means non-publicly offered Training Courses
delivered specifically for Client and held at a mutually agreed upon
time and location. Client Training Courses may be delivered in a
physical classroom at a location determined by mutual agreement or
through a live virtual classroom. Details regarding delivering Client
Training Courses shall be set forth in an approved SOW. For Client
Training Courses to be provided at an onsite classroom that are
canceled by Client: (i) ten (10) or more business days prior to the
course start date, MRI will provide a full refund or credit; or (ii) within
the ten (10) business day period before the course start date, fifty
percent (50%) of the course fee will be forfeited and MRI will provide
the remainder as a refund or credit.
4.2.2
Physical Classroom Public Training Course Cancellation
Policy. “Public Training Courses” means publicly offered Training
Courses that are not delivered specifically for Client. Public Training
Courses may be delivered in a physical classroom or through a live
virtual classroom. Registered attendees for a physical classroom Public
Training Course who cancel less than ten (10) business days prior to
the course start date will forfeit all applicable Training Course fees;
however, transfers to another person are permitted up to one (1)
business day prior to the course start date. In order to transfer a
physical classroom Public Training Course attendance spot, contact MRI
Learning
Solutions
at
1.800.321.8770
ext.
1
or
email
learning@mrisoftware.com. MRI reserves the right to cancel any
physical classroom Public Training Course class up to ten (10) business
days prior to the course start date for any reason. If MRI cancels a
physical classroom Public Training Course class and is unable to
reschedule the attendee, MRI will refund to such attendee all
applicable Training Course fees. MRI assumes no responsibility for non-
refundable airline tickets or other expenses that may be incurred due
to cancellation of a physical classroom Public Training Course.
4.2.3
Live Virtual Classroom Public Training Course Cancellation
Policy. Registered attendees for a live virtual classroom Public
Training Course program will receive a web-conferencing invitation on
the day prior to the start of the program. Registered attendees who
cancel less than twenty-four (24) hours before the scheduled start
date and time will not be refunded any applicable Training Course
fees. However, transfers to another person are permitted up to the
starting time of the program. In order to transfer a live virtual
classroom Public Training Course attendance spot, contact MRI
Learning
Solutions
at
1.800.321.8770
ext.
1
or
email
learning@mrisoftware.com. MRI reserves the right to cancel any live
virtual classroom Public Training Course class for any reason. If MRI
cancels a live virtual classroom Public Training Course class and is
unable to reschedule the attendee, MRI will refund to such attendee
all applicable Training Course fees.
4.2.4
Self-Paced e-Learning Training Course Cancellation Policy.
“Self-Paced e-Learning Training Courses” means publicly offered
Training Courses that have no set time or location, and can be taken
by any person at any time at the MRI Learning Solutions website. Self-
Paced e-Learning Training Courses are non-cancelable and applicable
fees are non-refundable. All sales of Self-Paced e-Learning Training
Courses are final and non-transferable.
4.3
Use Limitations; Monitoring. Unless otherwise explicitly
agreed in writing by MRI, Client is only allowed user access rights to any
Training Course up to the number of Named Users purchased as shown
in an executed SOW. Client and Named Users may not share access
rights, or any Training Course content, with others and may only access
the Training Course for personal training use as specifically permitted.
To the extent permitted by law, MRI may monitor, suspend or terminate
Client’s or any Named User’s use of any Training Course and/or training
account, or terminate this Schedule or the applicable SOW, or remove
or disclose Client’s or any Named User’s information in order to ensure
Client’s and all Named Users’ compliance with the Agreement or to
otherwise protect MRI rights or rights of others. If Client or any Named
User does not comply with the restrictions set forth in this Section 4.3,
Client may be charged additional fees equivalent to the resulting usage
fees for the related services incurred.
5
TERMINATION
This Schedule may be terminated in accordance with Section 9 of the
Master Agreement.
Where the non-breaching Party has a right to terminate this Schedule,
the non-breaching Party may at its discretion either terminate this
Schedule, or the applicable SOW.
Upon termination for any reason, all work products, including all drafts
and works in progress of deliverables, shall be delivered to Client.
Upon MRI’s receipt of a notice of termination, MRI shall cease and shall
cause any agent or subcontractor to cease all work under the applicable
SOW and minimize any additional costs or reimbursable expenses unless
otherwise agreed in writing by the Parties. Except as may be expressly
set forth in the applicable SOW, Client shall pay MRI fees for services
performed to the date of termination on a T&M basis together with any
expenses reasonably incurred in connection therewith. The Parties’
obligations under this Section 5 and Section 3 of this Schedule and the
surviving provisions of the Master Agreement shall survive any
termination
of
this
Schedule.
***************************************************************************************************************************************
END OF PROFESSIONAL SERVICES SCHEDULE
5-6
2/2007
HUD ADDENDUM
TABLE 5.1 MANDATORY CONTRACT CLAUSES FOR SMALL PURCHASES
OTHER THAN CONSTRUCTION
The following contract clauses are required in contracts pursuant to 24 CFR 85.36(i) and Section 6002 of the Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. HUD is permitted to require
changes, remedies, changed conditions, access and records retention, suspension of work, and other clauses approved
by the Office of Federal Procurement Policy. The PHA and contractor is also subject to other Federal laws including
the U.S. Housing Act of 1937, as amended, Federal regulations, and state law and regulations.
Examination and Retention of Contractor’s Records. The PHA, HUD, or Comptroller General of the United
States, or any of their duly authorized representatives shall, until three years after final payment under this contract,
have access to and the right to examine any of the Contractor’s directly pertinent books, documents, papers, or other
records involving transactions related to this contract for the purpose of making audit, examination, excerpts, and
transcriptions.
Right in Data and Patent Rights (Ownership and Proprietary Interest). The PHA shall have exclusive ownership
of, all proprietary interest in, and the right to full and exclusive possession of all information, materials, and
documents discovered or produced by Contractor pursuant to the terms of this Contract, including, but not limited to,
reports, memoranda or letters concerning the research and reporting tasks of the Contract.
Energy Efficiency. The Contractor shall comply with all mandatory standards and policies relating to energy
efficiency which are contained in the energy conservation plan issued in compliance with the Energy Policy and
Conservation Act (Pub.L. 94-163) for the State in which the work under this contract is performed.
Procurement of Recovered Materials
(a) In accordance with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act, the Contractor shall procure items designated in guidelines of the Environmental Protection
Agency (EPA) at 40 CFR Part 247 that contain the highest percentage of recovered materials practicable,
consistent with maintaining a satisfactory level of competition. The Contractor shall procure items designated in
the EPA guidelines that contain the highest percentage of recovered materials practicable unless the Contractor
determines that such items: (1) are not reasonably available in a reasonable period of time; (2) fail to meet
reasonable performance standards, which shall be determined on the basis of the guidelines of the National
Institute of Standards and Technology, if applicable to the item; or (3) are only available at an unreasonable price.
(b) Paragraph (a) of this clause shall apply to items purchased under this contract where: (1) the
Contractor purchases in excess of $10,000 of the item under this contract; or (2) during the preceding Federal
fiscal year, the Contractor: (i) purchased any amount of the items for use under a contract that was funded with
Federal appropriations and was with a Federal agency or a State agency or agency of a political subdivision of a
State; and (ii) purchased a total of in excess of $10,000 of the item both under and outside that contract.
Termination for Cause and for Convenience (contracts of $10,000 or more).
(a) The PHA may terminate this contract in whole, or from time to time in part, for the PHA’s convenience or the
failure of the Contractor to fulfill the contract obligations (cause/default). The PHA shall terminate by delivering
to the Contractor a written Notice of Termination specifying the nature, extent, and effective date of the
termination. Upon receipt of the notice, the Contractor shall: (1) immediately discontinue all services affected
(unless the notice directs otherwise), and (2) deliver to the PHA all information, reports, papers, and other
materials accumulated or generated in performing the contract, whether completed or in process.
(b) If the termination is for the convenience of the PHA, the PHA shall be liable only for payment for services
rendered before the effective date of the termination.
(c) If the termination is due to the failure of the Contractor to fulfill its obligations under the contract (cause/default),
the PHA may (1) require the Contractor to deliver to it, in the manner and to the extent directed by the PHA, any
work described in the Notice of Termination; (2) take over the work and prosecute the same to completion by
contract of otherwise, and the Contractor shall be liable for any additional cost incurred by the PHA; and (3)
withhold any payments to the Contractor, for the purpose of set-off or partial payment, as the case may be, of
amounts owned by the PHA by the Contractor. In the event of termination for cause/default, the PHA shall be
liable to the Contractor for reasonable costs incurred by the Contractor before the effective date of the
termination. Any dispute shall be decided by the Contracting Officer.