HomeMy WebLinkAboutresolution.council.089-02
RESOLUTION #89
(Series of2001)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF
ASPEN, COLORADO, AND WEBCREATE.COM INC. SETTING FORTH THE
TERMS AND CONDITIONS REGARDING WEB SITE DESIGN,
DEVELOPMENT AND IMPLEMENTATION AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen, Colorado, and WebCreate.com, Inc, a copy of which
contract is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the city of Aspen hereby approves that contract
between the City of Aspen, Colorado, and WebCreate,Com, Inc., regarding, web
site design, development and implementation, a copy of which is annexed hereto
and incorporated herein, and does hereby authorize the City Manager of the City
of Aspen to execute said contract on behalf of the City of Aspen.
Dated: ~ 6'1 I- ~. ...::?o- 7
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I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the city of Aspen, Colorado, at a meeting held August 27,2001
4~~ )Jd~~
. ,", 'S. Ko~h, City Clerk
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~ t;. WebCreate.com
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650 Main Street
Suite One
Grand Junction, CO 81501
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WebCreate.com, Inc. Service Agreement For
Web Site, Data and Applications Hosting
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Dedicated Server Hosting
Project # 02290303, August 16, 2001
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Client:
Authorized Representative of the Client:
Phone:
Fax:
Address:
City of Aspen, Colorado
Jim Considine
970-920-5014
970-920-5197
130 S. Galena St.
Aspen, Colorado 81611
jimc@cLaspen.co.us
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...
Authorized Representative E-mail Address:
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Tenns of Agreement
1. AUTHORIZATION
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I""
The above named client is engaging WebCreate.com, Inc., located at 650 Main St., Suite
I, Grand Junction, CO 81501 as an independent contractor for the specific purpose of
providing a dedicated server hosting services for the City of Aspen.
Hereafter, the client will be known as the "Client."
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2. DEDICATED HOSTING SERVICE AND DNS SERVICES
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It is agreed that WebCreate.com, Inc. will host this account on a web server as defined in
the document "WebCreate.com, Inc. Service Agreement For Computer Hardware and
Software Configuration." WebCreate.com will provide hardware, bandwidth and system
administration necessary to provide full and uninterrupted World Wide Web access to the
Client's site(s).
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...
""'" 970-248 9600 ib. Fax 0 URL
n 888-782 0444 ~ 9702489606 = http I/webcreate com
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3. COST.
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The City of Aspen will begin accruing hosting fees and billing will begin upon mapping
of any Universal Resource Locators (URL) to the above-described server and making this
URL accessible on the World Wide Web (public or private) or making the
pages/applications available through http or ftp. Annual hosting fees will be in the
amount of $2,640.00 and hosting is expected to begin on September 15, 2001. Hosting
prices are guaranteed not to change until May 1,2002. WebCreate.com, Inc. reserves the
right to increase prices by 5% after May 1, 2002.
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ITEM I SERVICE DESCRIPTION ANNUAL COST
Server space, hardware and software configuration as defined
in 'WebCreate.com, Inc. Service Agreement For
Computer Hardware and Software Configuration" on
Client's web server.
$2,640.00
...
,
. Dedicated server hosting
... . FTP access
. WebTrends Statistical Reporting
. Basic System Administration (excludes hardware and
... software failures beyond control of WebCreate.com, Inc.).
Additional system administration charged at $70.00/hr.
. Technical Support
. Bandwidth: Minimum Committed Rate: 500Kbps (may be
... increased based on needs/requirements).
. Data Transfer: 10GB of data transfer per month included.
Additional data transfer: $100.00 per 5GB (sold in 5GB
... blocks).
. Physical security of the server, associated hardware and
data.
...
Daily (weekday) tape backup (rotation).
Monthly restore/verification.
Quarterly mailing of a backup tape to the City of Aspen.
$600.00
...
!""'
Complete restoration in case of the server and/or software
failure will be performed immediateiy, without a quote and wili
be bilied at $55.00/hour, not to exceed 10 hours.
Domain Names (registered in Client's name)
Bilied at cost at
$70.00 per domain for the first
two years of registration
...
Registration fields wili be completed as foliows:
. Registrant: The City of Aspen
. Technical Contact: WebCreate.com
. Administrative Contact: WebCreate.com
. Billing Contact: WebCreate.com
Billed separately at the time of
domain registrations.
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SSL Certificate (128-bit cipher strength)
349.00 per domain
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4. ADDITIONAL SERVICES.
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The terms and conditions set forth in this document constitute the sole agreement
between WebCreate.com, Inc. and the Client regarding dedicated hosting services. Any
additional work not specified in this contract must be authorized in writing.
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5, CLIENT SYSTEM ADMINISTRATION AND PERFORMANCE
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WebCreate.com, Inc. will advise Client of software upgrades, software patches, security
patches and system configuration changes. System administration is not inclusive under
the terms of this agreement. Client is responsible for any expenses incurred in the process
of software and hardware upgrades. Such required system administration tasks will be
communicated in writing with the Client and will require Client's approval prior to
implementation. WebCreate.com, Inc. will provide necessary hardware and support to
guarantee hardware's uptime and accessibility to Client's web site(s).
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6. WARRANTIES AND LIABILITY.
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WebCreate.com, Inc. will manage and maintain the above described hardware and
software in its facilities on 650 Main Street, Grand Junction, Colorado. WebCreate.com,
Inc. will advise Client on any necessary future software and hardware upgrades prior to
making any purchases on behalf of the Client. WebCreate.com, Inc. takes full
responsibility for the security of the entrusted hardware, software, applications and data
that are located in our facilities. WebCreate.com, Inc. carries sufficient property and
professional liability insurance to cover any expenses associated with restoration of
hardware and software that may have been damaged in course of natural disasters, crime
(including "hacking" and "cracking") and negligence. Farm Bureau Insurance carries all
relevant insurance policies for WebCreate.com, Inc. WebCreate.com, Inc. will provide
Client with a physically secure facility to host web server hardware, software,
applications and data.
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7. LIMIT A TIONS OF LIABILITY
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IN NO EVENT SHALL WEBCREATECOM, INe. BE LIABLE TO CLIENT, USERS OR TO ANY lHIRD PARTY
FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR NONCONTRACTUAL
DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO lHIS AGREEMENT OR ANY SERVICES,
EVEN IF WEBCREA TE.COM, INe. HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
WEBCREA TE.COM' S LIABILITY, IF ANY, TO CLIENT OR TO ANY lHIRD PARTY HEREUNDER SHALL IN
NO EVENT EXCEED lHE TOTAL AFTER TAX PROFITS EARNED BY WEBCREATECOM, INe. UNDER
THIS AGREEMENT IN THE LAST TWELVE MONTHS. lHE PARTIES ACKNOWLEDGE THAT
WEBCREA TECOM, INe. HAS SET ITS PRICES AND ENTERED INTO lHIS AGREEMENT IN RELIANCE
UPON THE LIMITATIONS OF LIABILITY AND lHE DISCLAIMERS OF WARRANTIES SET FORTH HEREIN,
AND lHAT lHE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN lHE PARTIES. THE
PARTIES AGREE lHAT THE LIMITATION AND EXCLUSIONS OF LIABILITY WILL SURVIVE AND APPLY
EVEN IF FOUND TO HAVE FAILED OF lHEIR ESSENTIAL PURPOSE.
IN NO EVENT SHALL WEBCREA TE.COM, INC. BE LIABLE FOR FAILURE OR DELAY IN PERFORMING
ITS OBLIGATIONS HEREUNDER IF SUCH FAILURE OR DELAY IS DUE TO CIRCUMSTANCES BEYOND
ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF ANY GOVERNMENTAL
BODY, WAR, INSURRECTION, SABOTAGE, EMBARGO, FIRE, FLOOD, STRIKE OR OTHER LABOR
...
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DISTURBANCE, INTERRUPTION OF OR DELAY IN TRANSPORTATION, UNAVAILABILITY OF OR DELAY
IN TELECOMMUNICATIONS OR THIRD PARTY SERVICES, FAILURE OF THIRD PARTY SOFTWARE OR
INABILITY TO OBTAIN RAW MATERIALS, SUPPLIES, OR POWER USED IN OR EQUIPMENT NEEDED
FOR PROVISION OF THE SERVICES.
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8. DISCLAIMER OF WARRANTIES
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EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 OF THIS AGREEMENT, ALL CLIENT SERVICES ARE
PROVIDED ON AN "AS IS" BASIS, WEBCREATE.COM, INC. DOES NOT MAKE,
AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR .IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A
COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WEBCREA TE.COM, INC DOES
NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY
SECURE.
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9. LITIGATION,
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Any disputes arising from this contract will be litigated or arbitrated in the city of Grand
Junction, Colorado or Aspen, Colorado. This Agreement shall be governed and
construed in accordance with the laws of the State of Colorado, USA.
....
The undersigned hereby agree to the terms, conditions and stipulations of this agreement
on behalf of his or her organization or business.
This Agreement constitutes the entire understanding of the parties, Any changes or
modifications thereto must be in writing and signed by both parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
indicated below:
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[ SIGNATURE(S)
I August 16,2001
i DATE
. Martin Wiesiolek
[ PRINTED NAME
i President
TITLE
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III.; t;. WebCreate.com
650 Main Street
Suite One
Grand Junction, CO 81501
Web Site Development Service Agreement
Project # 02290301, August 16, 2001
Company I Client:
Authorized Representative of the Client:
Phone:
Fax:
Address:
Point of Contact E-mail Address:
Present WWW URL:
Project Description and Quote:
Terms of Agreement
1. AUTHORIZATION
City of Aspen, Colorado
Jim Considine
970-920-5014
970-920-5197
130 S. Galena St.
Aspen, Colorado 81611
jimc@cLaspen.co.us
http://aspengov .com
http://pitkingov.com
Reference: Pitkin County & City of
Aspen Web Site Development.
Project Number 01290301 AP, May
30, 2001 .
The above named client is engaging WebCreate.com, Inc., located at 650 Main St., Suite 1, Grand
Junction, CO 81501 as an independent contractor for the specific purpose of developing and/or
improving a World Wide Web site, as outlined in the documents "Pitkin County & City of Aspen
Web Site Development, Project Number 0129030IAP." The foundation for this service
agreement has been provided to the Client in three separate binders on May 30, 2001 and is
available online at http://aspen.webcreate.comlproject/ (Login Name: proaspen, Password:
progress).
Hereafter, the City of Aspen, Colorado will be known as the "Client" and WebCreate.com, Inc.
will be know as "Web Site Developer", "Developer" or "WebCreate.com, Inc."
""'" 970-248 9600 rt, Fax 0 URL
n 888-782 0444 ~ 970-2489606 = http /Iwebcreate com
'--""'"---'~-~'--~_~__'_'_"M'__'_'_____,,_,,_~
2. DEFINITIONS
A. "Client Properties" shall mean all text, pictures, sound, graphics, video and other data supplied
by Client to WebCreate.com, Inc.
B. "Developer Properties" or "WebCreate.com, Inc. properties" shall mean the Work Product
except for the Client Properties.
C. "Work Product" shall mean all HTML and/or Java files, graphics files, animation files, data
files, technology, scripting and programming (in source code form), all documentation, and each
and every deliverable developed by the Web Site Developer and delivered to Client in accordance
with the terms and conditions of this Agreement, excluding Client Properties.
3. SERVICES PROVIDED
WebCreate.com, Inc. will provide the web site design, development, programming and other
consulting services ("Services") to create the "Work Product" (as defined herein), all as set forth
in each statement of work, or modifications to each statement of work, agreed to by the parties
from time to time and attached and made a part hereof.
4. STATEMENT OF WORK
".
WebCreate.com, Inc. will design and develop a web site for the Client as outlined in Binders 1-3,
dated May 30, 2001 and according to specifications included in documents titled "Project
#01290301AP." These documents are also available on the City of AspenlPitkin County Project
Site at http://aspen.webcreate.com/project!. These documents are merely a foundation and
specifications will be defined on an ongoing basis. The process of the web site development will
be discussed with the City of Aspen and established prior to developing a web site.
The web site and all associated applications will be developed to Client's satisfaction and
specifications. All designs, templates and applications (software) will be approved by the Client
prior to final production.
Summary of applications, static web pages, design and elements to be developed by
WebCreate.com, Inc.:
The "cost" column references the project price as defined in Binders 1-3 (Project Number
01290301AP, May 30, 2001). However, changes to the specifications are expected and the Client
agrees to accommodate for additional funding and additional time needed for implementing such
changes.
".
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Phase One .. ..',
Module Name and Predicted Development Order Estimated Cost
Definition of Process for Developing a (this) Web Site $0.00
Module 1: Initial Setup $4,500.00
Module 2: Global: multi-tier web site graphic design, templates not included $3,900.00
in applications, navigation, design variations.
Module 3: Central Database $12,270.00
Module 4: Web-Based Database Administration Application $24,702.50
(ongoing throughout Phase One)
Module 5: News & Press Releases $2,737.50
Module 6: Employment Opportunities $6,450.00
Module 7: Departments, Employee, and Service Directory $7,002.50
Module 8; Creation of Department Templates $1,667.50
Module 9: City of Aspen Departments $3,510.00
Module 10: Joint Departments $1,706.25
Module 11: Pitkin County Departments $4,678.75
Module 12: Calendar of Events $8,930.00
Module 13: Feedback, Requests, Inquires, and Responses $1,452.50
Module 14: Search Engine $12,300.00
Module 15: Online Help $11,172.00
Module 16: Front Page Dynamic Content $1,157.50
Module 17: Ten Most Popular Pages $491.25
Module 18: Front Page $1,645.00
Module 19: Final Review $4,800.00
Estimation for Phase One $115,073.25
5. COST
Compensation and Term
The following fees shall apply:
Project Number 01290301AP: $115,073.25
Down-payment within 20 days of the contract execution: 30% of Phase One of the Web
Site/Applications development cost: $34,521.97
Payment schedule: project is broken down into Web Site Modules.
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PAYMENT SCHEDULE
Description
Down-Payment Amount
/ (Percentage)
Payment Due upon
module delivery (amount
or percentage)
N/A
Final Payment Upon
Module Acceptance by
the Client)
Remaining balance for
Phase One, which was
not included in any
specific module, due
within 60 days from the
project completion date.
15%
Phase One Down-
Payment
$34,521.97/30%
Module 1
-Module 18
Included in Phase
One Down-Payment.
55%
All work, project, changes and modification to completed web site modules will be quoted and
will require Client's approval. The following fees shall apply to any work and services
performed:
Consulting. (limited) related tathe web site development
Site planning, content development, site~rchitecture design, final sitepJan
inclusive for the duration of
the project
$60.00
$60.00
$65.00
$75.00
$85.00
$75.00
$80.00
$75.00
$60.00
$100.00
Projecl.ManagementlAdministration
Graphic Design
Database Programming & Design
Database./ntegration with Virtual. Server
ActiveX, Java,CGI,. CotdFusion
E-commerce Development
Macromedia Flash and Shockwave Design
Content. Development
Video & Audio Development
Search Engine registration (indexed databases)
inclusive for major search
engines
$65.00
General Web Site Design & Architecture
Domain. Registration/Re~registration/Renewals
at cost
(NetwOrk Solutions Fees)
at cost or lease
Dedicated Servers (if required)
Reasonable and necessary business and travel expenses actually incurred by WebCreate.com, Inc.
shall be reimbursed by Client upon submission of expense reports with back-up documentation,
except that travel expenses shall not apply for assignments within a 75 mile radius of downtown
Grand Junction, CO. All such expenses will be approved by the Client prior to implementation.
WebCreate.com, Inc. shall provide detailed invoices and shall maintain, and provide, upon
request, documentation for a period of one year from the date of the respective invoices. Client
shall make full payment for services within thirty days of invoice. If WebCreate.com, Inc. brings
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a legal action to collect any sums due under this Agreement, WebCreate.com, Inc. shall be
entitled to collect, in addition to all damages, it's costs of collection, including reasonable
attorney's fees.
This Agreement shall commence on the date stated in the signature block, and shall remain in
effect until all obligations under this Agreement have been properly completed.
6. ADDITIONAL SERVICES
The terms and conditions set forth in this document constitute the sole agreement between
WebCreate.com, Inc. and the Client regarding web site development services. Any additional
work not specified in this Service Agreement must be authorized in writing.
7. COMPLETION DA TE
The Developer and the Client must work together to complete the web site in a timely manner for
both parties to remain profitable.
We agree to work expeditiously to complete Phase One of this project no later than December 30,
2002 if this Service Agreement is executed by August 31, 200 I and the development project
timelines as established in the future document that defines the process for developing a web site
for the City of Aspen and Pitkin County.
Cancellation
Cancellation of the project or a portion of the project at the request of the Client must be made by
certified letter. In the event that work is postponed or canceled at the request of the Client by
registered letter, the Developer shall have the right retain the original 30% deposit. In the event
this amount is not sufficient to cover the Developer for time and expense already invested in the
project additional payment will be due. If additional payment is due, this will be billed to the
Client within 10 days of notification via registered letter to stop work. Pinal payment will be
expected under the same terms as listed in Article 5 above.
8. OWNERSHIP
WEBCREATE.COM, INC. PROPERTIES. As between the Web Site Developer and Client, the
Web Site Developer will at all times be and remain the sole and exclusive owner of the Developer
Properties, defined herein as any property, in any format used in or made part of the Work
Product which is not performed under the lifetime licensing basis or is not provided by the Client
or a Third Party. Except as expressly authorized in this Agreement, Client will not copy, modify,
distribute or transfer (by any means), display, sublicense, rent, reverse engineer, de-compile or
disassemble the Developer Properties.
"",
CLIENT'S PROPERTIES. As between Web Site Developer and Client, the Client will at all times
be and remain the sole and exclusive owner of Client Properties. W ebCreate.com, Inc. will
perform all design and programming work on lifetime license basis, thus allowing the Client to
use all content and applications residing on the Client's server. All files necessary for the web
site to properly display and function on the World Wide Web will be placed on the Client's web
server. Lifetime license grants the Client a right to use and reuse Developer Properties beyond the
duration of the Client-Developer relationship. Lifetime license does not provide for support,
upgrades and fixes beyond the Client-Developer relationship period. WebCreate.com, Inc.
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properties include all hardware and software used to produce or operate the web site(s) that are
not part of this or any other agreement with the Client.
WebCreate.com, Inc. grants to Client and Client accepts a non-exclusive, non-sublicenseable,
perpetual, worldwide license to publicly perform, publicly display and digitally perform the Work
Product on the Internet.
THIRD PARTIES'PROPERTIES. Except as otherwise set forth herein, nothing shall cause or
imply any sale, license, or other transfer of proprietary rights of or in any third party software or
products from one party to this Agreement to the other party.
INTELLECTUAL PROPERTY. If either party (the "Indemnitee") promptly notifies the other (the
"Indemnitor") in writing of a claim against Indemnitee that any of the Developer Properties or
Client Properties infringes a presently existing proprietary right of a third party, and if Indemnitee
specifies in such notice that the claim is based to any extent upon an alleged infringement by any
portion of Indemnitor's properties, the Indemnitor, with respect to and the extent of the portion of
the claim pertaining to the Indemnitor's properties, shall indemnify and defend such claim at its
expense and pay any costs or damages, including any attorney's fees and/or expert witness or
consulting fees, that may be incurred or finally awarded against the Indemnitee.
9. WARRANTIES AND PERFORMACE
9.1 WebCreate.com, Inc. represents and warrants to Client that it has the experience and ability
to perform the services required by this Agreement; that it will perform said services in a
professional, competent and timely manner; that it has the power to enter into and perform
this Agreement; and that its performance of this Agreement shall not infringe upon or violate
the rights of any third party or violate any federal, state and municipal laws. However, Client
will not determine or exercise control as to general procedures or formats necessary to have
these services meet Client's satisfaction.
9.2 WEBCREA TE.COM, INC. WARRANTIES. The Web Site Developer represents and
warrants that the Work Product does not and will not knowingly: (a) violate any law or
regulation, including, without limitation, the laws and regulations governing export control;
(b) be defamatory or trade libelous: (c) be pornographic or obscene; or (d) contain any
viruses, Trojan horses, worms, time bombs or other computer programming devices which
are intended to damage a user's system or data or prevent the user from using same.
"'"
9.3 CLIENT WARRANTIES. Client represents and warrants that the Client Properties will
not knowingly: (a) violate any law or regulation, including, without limitation, the laws and
regulations governing export control; (b) be defamatory or trade libelous; (c) be pornographic
or obscene; or (d) contain any viruses, Trojan horses, worms, time bombs or other computer
programming devices which are intended to damage a user's system or data or prevent the
user from using same. Client further represents and warrants that (a) Client has all rights
necessary for the production, distribution, exhibition and exploitation of the Client Properties
as part of the Work Product consistent with the license granted in this Agreement; and (b)
there is no outstanding contract, commitment or agreement to which Client is a party or legal
impediment of any kind known to Client which conflicts this Agreement or might limit,
restrict or impair the rights granted hereunder.
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9.4 WebCreate.com, Inc. acknowledges that the services rendered under this Agreement shall
be solely as an independent contractor. WebCreate.com, Inc. shall not enter into any contract
or commitment on behalf of Client. WebCreate.com, Inc. further acknowledges that it is not
considered an affiliate or subsidiary of Client, and is not entitled to any Client employment
rights Of benefits. It is expressly understood that this undertaking is not a joint venture.
9.5 Confidentiality. WebCreate.com, Inc. fecognizes and acknowledges that this Agreement
creates a confidential relationship between WebCreate.com, Inc. and Client and that
information concerning Client's business affairs, customers, vendors, finances, properties,
methods of operation, computer programs, and documentation, and other such information,
whether written, oral, or otherwise, is confidential in nature. All such information concerning
Client is hereinafter collectively referred to as "Confidential Information."
9.6 Non-Disclosure. WebCreate.com, Inc. agrees that, except as directed by Client, it will not
at any time during or after the term of this Agreement disclose any Confidential Information
to any person whatsoever and that upon the termination of this Agreement it will turn over to
Client all documents, papers, and other matter in its possession or control that relate to
Client. W ebCreate.com, Inc. further agrees to bind its employees and subcontractors to the
terms and conditions of this Agreement.
9.7 Office Rules. WebCreate.com, Inc. shall comply with all office rules and regulations,
including security requirements, when on Client premises.
9.8 Conflict of Interest. WebCreate.com, Inc. shall not offer or give a gratuity of any type to
any Client employee or agent.
9.9 Governing Law. This Agreement shall be construed and enforced in accordance with the
laws of the State of Colorado.
9.10 Insurance. WebCreate.com, Inc. shall obtain and maintain during the term of this
Agreement insurance, including worker's compensation, motor vehicle, and comprehensive
general liability.
10, LIMITATIONS OF LIABILITY
""
IN NO EVENT SHALL WEBCREA TE.COM, INC. BE LIABLE TO CLIENT, USERS OR TO ANY THIRD PARTY
FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR NONCONTRACTUAL
DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SERVICES,
EVEN IF WEBCREA TE.COM, INC. HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
WEBCREATE.COM'S LIABILITY, IF ANY, TO CLIENT OR TO ANY THIRD PARTY HEREUNDER SHALL IN
NO EVENT EXCEED THE TOTAL AFTER TAX PROFITS EARNED BY WEBCREATE.COM, INC. UNDER
THIS AGREEMENT IN THE LAST TWELVE MONTHS. THE PARTIES ACKNOWLEDGE THAT
WEBCREA TE.COM, INC. HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE
UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES SET FORTH HEREIN,
AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE
PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY WILL SURVIVE AND APPLY
EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
IN NO EVENT SHALL WEBCREA TE.COM, INC. BE LIABLE FOR FAILURE OR DELAY IN PERFORMING
ITS OBLIGATIONS HEREUNDER IF SUCH FAILURE OR DELAY IS DUE TO CIRCUMSTANCES BEYOND
ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF ANY GOVERNMENTAL
BODY, WAR, INSURRECTION, SABOT AGE, EMBARGO, FIRE, FLOOD, STRIKE OR OTHER LABOR
DISTURBANCE, INTERRUPTION OF OR DELAY IN TRANSPORTATION, UNA V AILABILITY OF OR DELAY
IN TELECOMMUNICATIONS OR THIRD PARTY SERVICES, FAILURE OF THIRD PARTY SOFTWARE OR
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INABILITY TO OBTAIN RAW MATERIALS, SUPPLIES, OR POWER USED IN OR EQUIPMENT NEEDED
FOR PROVISION OF THE SERVICES.
11. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 OF THIS AGREEMENT, ALL CLIENT SERVICES ARE
PROVIDED ON AN "AS IS" BASIS. WEBCREATE.COM, INC. DOES NOT MAKE,
AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A
COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WEBCREATE.COM, INC. DOES
NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY
SECURE.
12. LITIGATION.
Any disputes arising from this contract will be litigated or arbitrated in the city of Grand Junction,
Colorado or Aspen, Colorado. This Agreement shall be governed and construed in accordance
with the laws of the State of Colorado, USA.
13. ENTIRE AGREEMENT AND NOTICE
This Agreement contains the entire understanding of the parties and may not be amended without
the specific written consent of both parties. Any notice given under this Agreement shall be
sufficient if it is in writing and if sent by certified or registered mail.
The undersigned hereby agree to the terms, conditions and stipulations of this agreement on
behalf of his or her organization or business.
This Agreement constitutes the entire understanding of the parties. Any changes or modifications
thereto must be in writing and signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
indicated below:
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SIG E(S)
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r August 16, 2001
I DATE
r Martin Wiesiolek
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i PRINTED NAME
President
TITLE
A down-payment in the amount of $34,521.97 is required to validate this Service
Agreement.
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~~ WebCreate.com
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650 Main Street
Suite One
Grand Junction, CO 81501
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WebCreate.com, Inc. Service Agreement For
Computer Hardware and Software Configuration
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Project # 02290301AP, August 16, 2001
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Company I Client: City of Aspen, Colorado
Authorized Representative of the Client: Jim Considine
Phone: 970-920-5014
Fax: 970-920-5197
Address: 130 S. Galena St.
Aspen, Colorado 81611
Authorized Representative E-mail Address:jimc@cLaspen.co.us
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Terms of Agreement
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1. AUTHORIZATION
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The above named client is engaging WebCreate.com, Inc., located at 650 Main St., Suite
I, Orand Junction, CO 81501 as an independent contractor for the specific purpose of
purchasing and configuring software for hosting of web site(s), applications, data and
software for the City of Aspen.
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Hereafter, the City of Aspen, Colorado will be known as the "Client.
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2. COST,
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Notwithstanding any prices listed in literature or on Web pages, the client and
WebCreate.com, Inc. agree that the services described in this Service Agreement shall be
completed for $5,529.00. If the final cost of the hardware and software setup is less than
described below, WebCreate.com, Inc. will refund the Client for the difference between
the quoted cost and actual cost of described hardware and software within 30 days from
the purchase. WebCreate.com, Inc. will supply the Client with associated invoices upon
request.
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""'" 970-248 9600 ro- Fax 0 URL
~ 888-782 0444 ~ 970 248 9606 = http ;/webcreate com
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HARDWARE CONFIGURATION AND SOFTWARE CONFIGURATION AND COST
DESCRIPTION HOURS COST
Hardware Configuration 2.00 $130.00
Windows 2000 Server 5 Client included in
hardware price
Windows 2000 Server Software Installation and Configuration 4.00 $260.00
ColdFusion 5.0 Professional Server for Windows 2000 (no client $1,295.00
access licenses needed).
Cold Fusion 5.0 Professional Server for Windows 2000 2.00 $130.00
Installation and Configuration
Microsoft SOL Server 2000 Standard Edition with 5 CALs $1,489.00
Microsoft SOL Server 2000 Standard Edition with 5 CALs 2.00 $130.00
Installation and Configuration
Internet Information Services (liS) 5.0: Free with Windows 2000 $0.00
Server.
Internet Information Services (liS) 5.0: Installation and 2.00 $130.00
Configuration
ActiveState's ActivePerl: Free download. Used for any CGI $0.00
scripting that is beyond the scope of Cold Fusion.
ActiveState's ActivePerl: Installation and Configuration 1.00 $65.00
Veritas Backup Exec for Windows NT/2000 Server Edition v8.6 $795.00
Veritas Backup Exec Agent for Microsoft SOL Server $795.00
Veritas Backup Exec and SOL Agent Installation and 4.00 $260.00
Configuration
Estimated Total Shipping $50.00
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3, ADDITIONAL SERVICES.
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The terms and conditions set forth in this document constitute the sole agreement
between WebCreate.com, Inc. and the Client regarding web server hardware and software
setup. Any additional work not specified in this contract must be authorized in writing.
Should the Client desire additional software, hardware components, installation and
configuration beyond the scope of this Service Agreement, the client agrees to pay
WebCreate.com, Inc. the actual cost for requested computer hardware and software
components as well as pay for installation/configuration of these components at our
published rates.
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4. PERFORMANCE.
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WebCreate.com, Inc. agrees to setup the web server hardware (assuming that web server
will already be placed in our facility) and software no later than 45 days after the
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execution of this contract. Full payment must be received prior to WebCreate.com, Inc.
placing the purchase order for the software described in this Service Agreement.
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5, PAYMENT.
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Client agrees to pay to WebCreate.com, Inc. a sum of $5,529.00 within 20 days from the
execution of this agreement. "Execution of this agreement" constitutes valid signatures
on the last page of this agreement.
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6. COMPUTER SOFTWARE OWNERSHIP
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The City of Aspen will become legal owner of the web server hardware, software, scripts,
applications and data upon execution of this contract. WebCreate.com, Inc. will register
all hardware in it's own name for the purpose of retaining technical support rights for the
duration of the relationship with The City of Aspen. All software will be registered in the
name of "The City of Aspen, Colorado." Such registrations are transferable and will be
transferred to The City of Aspen upon termination of this relationship or upon request.
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7. WARRANTIES AND LIABILITY.
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WebCreate.com, Inc. will manage and maintain the above described hardware and
software in its facilities on 650 Main Street, Grand Junction, Colorado. WebCreate.com,
Inc. will advise Client on any necessary future software and hardware upgrades prior to
making any purchases on behalf of the Client. WebCreate.com, Inc. takes full
responsibility for the security of the entrusted hardware, software, applications and data
that are located in our facilities. WebCreate.com, Inc. carries sufficient property and
professional liability insurance to cover any expenses associated with restoration of
hardware and software that may have been damaged in course of natural disasters, crime
(including "hacking" and "cracking") and negligence. All relevant insurance policies for
WebCreate.com, Inc. are carried by Farm Bureau Insurance. WebCreate.com, Inc. will
provide Client with a physically secure facility to host web server hardware, software,
applications and data.
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8. LIMIT A TIONS OF LIABILITY
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IN NO EVENT SHALL WEBCREA TE.COM, INC. BE LIABLE TO CLIENT, USERS OR TO ANY THIRD PARTY
FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR NONCONTRACTUAL
DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SERVICES,
EVEN IF WEBCREA TE.COM, INC. HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
WEBCREATE.COM'S LIABILITY, IF ANY, TO CLIENT OR TO ANY THIRD PARTY HEREUNDER SHALL IN
NO EVENT EXCEED THE TOTAL AFTER TAX PROFITS EARNED BY WEBCREATE.COM, INC. UNDER
THIS AGREEMENT IN THE LAST TWELVE MONTHS. THE PARTIES ACKNOWLEDGE THAT
WEBCREA TE.COM, INC. HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE
UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES SET FORTH HEREIN,
AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE
PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY WILL SURVIVE AND APPLY
EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
IN NO EVENT SHALL WEBCREA TE.COM, INC. BE LIABLE FOR FAILURE OR DELAY IN PERFORMING
ITS OBLIGATIONS HEREUNDER IF SUCH FAILURE OR DELAY IS DUE TO CIRCUMSTANCES BEYOND
ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF ANY GOVERNMENTAL
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BODY, WAR, INSURRECTION, SABOTAGE, EMBARGO, FIRE, FLOOD, STRIKE OR OTHER LABOR
DISTURBANCE, INJERRUPTION OF OR DELAY IN TRANSPORTATION, UNA V AILABILITY OF OR DELAY
IN JELECOMMUNICATIONS OR TIfIRD PARTY SERVICES, FAILURE OF THIRD PARTY SOFTWARE OR
INABILITY TO OBTAIN RAW MA JERIALS, SUPPLIES, OR POWER USED IN OR EQUIPMENT NEEDED
FOR PROVISION OF THE SERVICES.
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9. DISCLAIMER OF WARRANTIES
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EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 OF THIS AGREEMENT, ALL CLIENT SERVICES ARE
PROVIDED ON AN "AS IS" BASIS. WEBCREAJE.COM, INC. DOES NOT MAKE,
AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A
COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WEBCREA JE.COM, INe. DOES
NOT WARRANT THAT THE SERVICES WILL BE UNINJERRUPJED, ERROR-FREE OR COMPLEJEL Y
SECURE.
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10. LITIGATION.
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Any disputes arising from this contract will be litigated or arbitrated in the city of Grand
Junction, Colorado or Aspen, Colorado. This Agreement shall be governed and
construed in accordance with the laws of the State of Colorado, USA.
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The undersigned hereby agree to the terms, conditions and stipulations of this agreement
on behalf of his or her organization or business.
This Agreement constitutes the entire understanding of the parties. Any changes or
modifications thereto must be in writing and signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
indicated below:
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: August 16, 2001
i DATE
I Martin Wiesiolek
i
! PRINTED NAME
. President
I TITLE
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