HomeMy WebLinkAboutresolution.council.086-95
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RESOLUTION #8 Ip
(Seri!ls of 1995)
A RESOLUTION APPROVING AN CONTRACT FOR FINANCIAL
HARDWARE AND SOFTWARE BETWEEEN EDEN SYSTEMS, INC, AND
THE CITY OF ASPEN, COLORADO, AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY
OF ASPEN, COLORADO
WHEREAS, there has been submitted to the City Council a contract for financial
hardware and software between Eden Systems, Inc, and the City of Aspen, a true and accurate
copy of which is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
ASPEN, COLORADO:
That the City Council of the City of Aspen hereby approves that contract agreement
between Eden Systems, Inc. and the City of Aspen, a copy of which is annexed hereto and
incorporated herein, and does hereby authorize the City Manager to execute said agreement
on behalf of the City of Aspen,
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen pn
the _ day of December 1995.
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John . Bennett, Mayor
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 Asp~n,
Colorado, at a meeting held on the day hereinabove stated.
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Eden Systems, Incoroorated
Software License and Use Agreement
THIS AGREEMENT, made and entered into by and between Eden Systems, Incorporated (hereinafter "Licensor"),
a corporation dnly authorized and existing under the laws of the State of Washington and having its principal
offices at SOlS Tieton Drive; Suite A; Yakima, Washington 98908, and the party:
Name:
Address:
City, State, Zip Code:
City of Aspen, Colorado
130 S. Galena Street
Aspen, Colorado 8161I
hereinafter referred to as .tLicensee".
Licensor desires to grant to Licensee and Licensee desires to acquire from Licensor a non-exclusive right and
license to use certain computer software as hereinafter defined. Both parties agree they are able to comply witli
and ,,~ll satisfy the. terms and conditions as set forth in this Agreement. Both parties, intending to be legally
bound, agree to the following:
Section 1
DEFINITIONS
The definition of terms set forth in this section shall apply when such terms are used in this Agreement, its
exltibits, and any amendments including:
1.1 "Licensed Program," The computer program designated by Licensor as InForum™, or Command
Series'. including object code, as well as related procedural code, and documentation of any type which describes
it, including Licensee's Financial Management System: Request For Proposal dated April, 1995, as amended by
subsequent negotiations and discussions between the parties. The system is licensed for use on the following:
Computer ProcessorlModel:
Concurrent Users:
Sun SparcServer 20 Model 712
Sixteen (16)
1.2 "Licensed Documentation." The system user manuals, and other documentation made available by Licensor,
for the Licensed Program.
1.3 "Enhancements," Changes or additions, other than Maintenance Modifications, to the Licensed Program or
Licensed Documentation that add significant new functions or substantially improved performance thereto by
changes in system design or coding.
1,4 "Error." Problem caused by incorrect operation of the computer code of the Licensed Program or an
incorrect statement or diagram in Licensed Documentation that produces incorrect results or causes incorrect
actions to occur.
LlCENSE.SAM
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2.2 Delivery of Materials, Licensee will ship the computer named herein to the address of Licensor for the
purpose preloading, certifying, and delivering one copy of the Licensed Program to Licensor.
Licensee assumes all costs related to the equipment, including but not limited to the costs of shipping, insurance,
and related taxes and Licensee protects and indemnifies Licensor from any and all claims of all types related to the
equipment while in transit to or from Liceusor offices or while on Licensor premises.
2.3 Necessity for third-party Software, Licensee acknowledges that in order to be ~xecuted, the Licensed
Program requires certain third-party software, as specified by the Licensor, the acquisition of which shall be the
sole responsibility of Licensee to obtain and maintain in its most current release. Licensee agrees that prior to use
of the Licensed Program in any manner, Licensee will obtain necessary licenses from the vendors of such
third-party software.
2.4 Limited Support of Licensed Program, Licensor shall furnish to Licensee such Maintenance Modifications
as may be developed by Licensor generally for licensees of the Licensed Program.
2.5 Assignment of Rights in Licensee Maintenance and Enhancement Modifications. All right, title, and
interest in all Maintenance and Enhancement Modifications developed by Licensee during the term hereof remains
with Licensor. Licensee agrees that such modifications shall be used by Licensee, and will not be distributed or
otherwise made available to any third party other than Licensor.
2.6 Availability of Licensor Enhancements. Licensor agrees to offer to Licensee a license to Enhancements that
Licensor develops and offers generally to licensees of the Licensed Program at its announced license fees for such
Enhancements,
2.7 Licensee Notification and Delivery of Materials, Licensee shall notifY and deliver to Licensor one copy of
any Maintenance and Enhancement Modifications developed by Licensee within a reasonable period after
development.
Section 3
TITLE TO MATERIALS
3.1 Title to Licensed Program and Licensed Docnmentation. All right, title, and interest in and to the Licensed
Program and Licensed Documentation, including the rhedia on which the same are furnished to Licensee, are and
shall remain with Licensor. Licensee acknowledges that no such rights, title, or interest in or to the Licensed
Program and the Licensed Documentation is granted under this Agreement, and no such assertion shall be made
by Licensee. Licensee is granted only a limited right of use of the Licensed Program and Licensed Documentalion
as set forth herein, which right of use is not coupled with an interest and is revocable in accordance with the terms
ofthis Agreement.
3.2 Title to Enhancements and Maintenance Modifications; Restrictions on Use, Disclosure, Access, and
Distribution. All right, title, and interest in and to any Enhancements and Maintenance Modifications developed
by either Licensor or by Licensee shall be and remain with Licensor. Licensee shall treat all such Enhancements
and Maintenance Modifications, whether developed by Licensor or by Licensee, in accordance with the restrictions
and limitations set forth herein respecting Licensed Programs and Licensed Documentation.
Section 4
FEES AND PAYMENTS
4.1 License Fee. In consideratioo of the licenses granted hereunder, Licensee shall pay Licensor a one-time
license fee as further defined in Exhib',t A, attached hereto.
LICENSE.SAM
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5.5 Injunctive Relief. Licensee recognizes and acknowledges that any use or disclosure of the Licensed Program
or Licensed Documentation by Licensee in a manner inconsistent with the provision of this Agreement may cause
Licensor irreparable damage for which remedies other than injunctive relief may be inadequate, and Licensee
agrees that in any request to a court of competent jurisdiction by Licensor for injunctive or other eqnitable relief
seeking to restrain such use or disclosure, Licensee will not urge that such remedy is not appropriate under the
circumstances.
5.6 Technical Protections. Licensor may from time to time prescribe password protection as an additional
security measure for the Licensed Program, and Licensee shall cooperate with Licensor in connection therewith.
5.7 Security Audit. Licensor shall have the right to make visits to the Licensee's computer facilities to review
security measures respecting the Licensed Program and Licensed Documentation, and, if deficiencies are identified
by Licensor, Licensee shall implement such additional security practices as are reasonably necessary to adequately
ensure the security of the Licensed Program and Licensed Documentation.
Licensor shall pay the cost of such security audits.
5.8 Survival of Terms. The provisions of this Section 5 shall survive termination of this Agreement for any
reason.
Section Ii
LIMITED WARRANTY, LIMITATION OF LIABILITY, AND INDEMNITY
6.1 Limited Warranty Against Infringement.. Licensor warrants that the Licensed Program and Licensed
Documentation as delivered to Licensee do not infringe any third-party rights in patent, copyright, or trade secret
in the United States.
6.2 Limited Warranty of Conformity. Licensor warrants, for the benefit only of Licensee, that for the life of the
Agreement, the Licensed Program will conform in all material respects to the Licensed Documentation (except for
modifications made by Licensee or by Licensor at the request of Licensee), but only if Licensee maintains
uninterrupted Software Support from the date of execution of this Agreement. Licensor assumes no responsibility
for obsolescence of the Licensed Program nor for lack of conformity occurring from Licensee's failure to update the
Licensed Program with distributed Enhancements, Mll!ntenance Modifications, or Error Corrections.
6.3 Exclusive Remedy. As the exclusive remedy of Licensee for any nonconformity or defect constituting an
Error in the Licensed Program for which Licensor is responsible, Licensor shall use commercially reasonable
efforts to provide Maintenance Modifications with respect to such Error. However, Licensor shall not be obligated
to correct, cure, or otherwise remedy any Error in the Licensed Program resulting from any (1) modification ofthe
Licensed Program by Licensee, (2) failure of Licensee to nowy Licensor of the existence and nature of such
nonconformity or defect promptly upon its discovery.
6.4 Disclaimer. EXCEPT AS SPECIFICALLY SET FORlli HEREIN, LICENSOR MAKES NO
WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING OR RELATING TO TIffi LICENSED
PROGRAM OR LICENSED DOCUMENTATION OR TO ANY OTIffiR MATERIALS FURNISHED OR
PROVIDED TO LICENSEE HEREUNDER LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT
TO SAID MATERIALS OR TIffi USE TIffiREOF.
6.5 Limitation of Liability. EXCEPT WIlli RESPECT TO (A)LlABILITY ARISING FROM CLAIMS OF
INFRINGEMENT OF THIRD-PARTY RIGHTS IN TIffi UNITED STATES IN COPYRIGHT, TRADE SECRET,
OR PATENT, OR (B)LOSSES DUE TO INJURY ANDIOR DAMAGE TO TANGffiLE PROPERTY
RESULTING FROM AN INTENTIONAL ACT OR NEGLIGENCE OF EITIffiR PARTY, ITS EMPLOYEES OR
AGENTS; NEITHER PARTY SHALL BE LIABLE FOR DIRECT DAMAGES ARISING OUT OF TIffi
LICENSE.8AM
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8.3 Force Majeure, Excepting provisions of this Agreement relating to payment of license fees, concurrent user
fees, and protection of Licensor's Proprietary Information, neither party shall be in default of the terms hereof if
such action is due to a natural calamity, or similar causes beyond the control of such party.
8.4 GovernIng Law. This Agreement shall be governed by and constrned in accordance with laws of the state in
which an action, including arbitration, is brought. Venue will be deemed appropriate in either the counties of
Yakima, Washington or the county seat of the Licensee.
8.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to
law, the remaining provisions ofthis Agreement will remain in full force and effect.
8.6 Notice. Any notice required or permitted to be made or given by either party under this Agreement shall be
made in writing and delivered by hand or by certified mail, postage prepaid, addressed as first set forth above or to
such other address as a party shall designate by written notice given to the other party.
8.7 Acceptance Testing. Within ten (10) business days of Licensor's notification to Licensee that the Licensed
Program or portion thereof is installed and the applicable training administered, Licensee shall begin performance
of Acceptance Testing, the criteria and outcome of such Acceptance Testing to be mutually agreed to by both
parties before any subsequent action.
Such Acceptance Testing must be completed within a period often (10) business days from date of notification.
8.8 Failure of Acceptance Testing, Retesting. If the parties agree that the Licensed Program does not
successfully pass Acceptance Testing, the Licensee shall notifY Licensor in writing ("first notice of failure") and
shall specify with as much detail as possible in which respects the Licensed Program failed to pass the Acceptance
Testing. Licensor shall make such necessary corrections and modifications in the Licensed Program to establish a
reasonable basis for additional Acceptance Testing within a period of thirty (30) days from first notice of failure.
Licensor shall notify Licensee when such retesting can begin and the Licensee shall complete Acceptance Testing
within a period of ten (10) business days from date of notification. If the parties agree that the Licensed Program
continues to fail Acceptance Testing, the Licensee shall notifY Licensor in writing of the Licensee's intention to
terminate and if the Licensor fails to remedy the defect within sixty (60) days of receipt of said notification, the
Licensee has the right, at its option, to terminate the A,greement by giving written notice of such termination to the
Licensor. .
Upon the Licensee's termination of this Agreement due to failure of the second Acceptance Test, the Licensee shall
promptly return the Licensed Program and documentation and all related materials to the Licensor and receive
reimbursement of all payments made to Licensor.
8.9 Acts of Insolvency, The Licensee may terminate this Agreement by written notice to the Licensor if the
Licensor becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the
appointment of a receiver for its business or assets, becomes subject to any proceeding under any domestic
bankruptcy or insolvency law or publicly announces liqnidation proceedings.
8,10 Insurance. During the term of this Agreement, Licensor shall maintain an appropriate level of insurance
against all personal and property damage caused by Licensor's employees while on Licensee's premises and shalI
exhibit certificates of evidence of such insurance upon request by Licensee.
8.11 Non-Discrimination, No discrimination because of race, color, creed, sex, marital status, affectional or
sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the
employment of persons to perform services under this contract. Licensor agrees to meet all of the requirements, of
Licensee's municipal code, Section 13-98, pertaining to non-discrimination in employment.
LICENSE. SAM
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All annual support charges are due and payable on or before the 1st of January of each Support Agreement Term,
Failure to make such payment shall constitute cancellation and termination of support by Licensee and no further
service or support will be provided by Licensor.
Charges for meals, parking and other incidentals will be limited to the amount allowed to the employees of
Licensee while carrying out the duties of the Licensee.
Other costs, including but not limited to airltrainltaxi fare, lodging, car rental, parking, freight costs and
reproduction charges are the responsibility of the Licensee. Licensee may incur such costs by incurring them
directly on behalf of the Licensor.
Such costs incurred by Licensor, and authorized by Licensee on account of this Agreement, shall be billed to the
Licensee. Licensor shall have the right to charge a 5% administrative fee for all such fees and charges,
The fees and charges specified in this section are exclusive of any federal, state, or local excise, sales, use, and
similar taxes assessed or imposed with respect to the service and support provided hereunder. Licensee shall pay
any such amounts upon request of Licensor accompanied by evidence of imposition of such taxes.
9.3 Licensee Responsibilities. Licensee shall be responsible for procuring, installing, and maintaining all
equipment, telephone lines, communications interfaces, and other hardware necessary to operate the Licensed
Program and to obtain from Licensor the services called for according to Licensor's then existing policy.
All support, maintenance, and other services including but not limited to third-party operating software, database
software and related tools, hardware and related peripherals, communications, netWorking, printer drivers, ODBC
tools, must be obtained directly from manufacturer by Licensee and Licensor makes no claim to provide same
under this Agreement nor to guarantee any right to obtain such support, maintenance, service or products by
Licensee,
Licensor agrees to act as the primary point of contact and to provide its best efforts to coordinate support between
Licensee and Quadrant Systems, Incorporated for support calls and activity related to the cash receipting function
supplied by Quadrant Systems, Incorporated. However, Licensor assumes no liability for such software nor does it
make any warranties related to the products and services supplied by Quadrant Systems, Incorporated.
9.4 Proprietary Rights. To the extent that Licensor may provide Licensee with any Error Corrections or
Enhancements or any other software, including any new software programs or components, or any compilations or
derivative works of the Licensed Program prepared by Licensor, Licensee may (l)install one copy of the Licensed
Program, in tlle most current form provided by Licensor, in,Licensee's own facility; (2)use such Licensed Program
in a manner consistent with the requirements of the Agreement, for purposes of serving Licensee's internal
business needs; and (3)make up to tluee (3) copies of the Licensed Program in machine-readable form for
nonproductive backup purposes only. Licensee may not use, copy, or modify the Licensed Program, or make any
copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor.
The Licensed Program is and shall remain the sole property of Licensor, regardless of whether Licensee, its
employees, or contractors may have contributed to the conception of such work, joined in the effort of its
development, or paid Licensor for the use of the work product, Licensee shall from time to time take any further
action and execute and deliver any further instrument, including docwnents of assignment or ackuowledgment,
that Licensor may reasonably request in order to establish and perfect its exclusive ownership rights in such works.
Licensee shall not assert any right, title, or interest in such works, except for the non-exclusive right of use granted
to Licensee' at the time of its delivery or on-site development.
9.5 Disclaimer of Warranty and Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, EDEN EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE
LICENSE. SAM
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Exhibit A
INFORUM DELIVERABLES
Products, Services and Equipment License Fee
Annual
Support $
Products:
Install!
Setup
Financials -(*) $40000.00 $8640.00 $2160.00 $50800.00 $6000.00
Budgeting
General Ledger
Accounts Payable
Accounts Receivable
Purchasing
PayrolllBenefitslPosition Control $20000.00 $5040.00 $720.00 $25760.00 ' $3000.00
Human Resources $12500.00 $3200.00 $1600.00 $17300.00 $3675.00
Business Licensing $5500.00 $IOSO.OO $6580.00 $825.00
Fixed Assets $0.00 $360.00 $360.00 ' $413.00
Utility Management $8500.00 $3600.00 $12100.00 $1275.00
IQ Report Writer(*) $3000.00 $720.00 $3720.00 $450.00
Cash Receipting Interface(*) $500.00 $360.00 $860.00 $75.00
Services:
$0.00
Enhancements $0.00
Consu!ting/Management $0.00
Data File Conversion Services(*) $9000.00 $9000.00
Program File Conversion Services , $0.00
Sales Tax Revisions(**) $5000.00 $5000.00
Equipment:
I
.f
$0.00
$0.001
$0.00
Other Products/Charges:
Software Tools, Menus(*) $3250.00 $3250.00
Acucobol Runtime $1000.00 $1000.00
Taxes $0.00
Estimated Travel, Expenses(*) $15000.00 $15000.00
Freight $0.00
Source Code(*) $0.00
1'()taL</<< $99250.00 $23000.00 $28480.00 ' $150730.00 $is'713lUO
LICENSE. SAM
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Exhibit A
SALES TAX REVISIONS
The following items constitute the en1ire commitment by Licensor withrespec1 to Sales Tax
functionality and both parties agree they have met and agreed on the concept, required function,
and the approach to each item on the list.
There are two (2) types ofi1ems on the list: (l)Nice 10 have; and (2)Mandatory.
Fulfilling the items marked as 'mandatory' is mandatory. Fulfilling items marked 'nice 10 have' do
NOT constitute mandatory deliverables in this Agreement but Licensor agrees to make a
reasonable effort to include 'nice to have' items during the course of the effort.
The three (3) poten1ial alternatives to providing this functionality is l)Modification of the
InForum NR module; 2)Modification of the Command Series Business Licensing module; and
3)Writing an application using a third party tool or database application.
Licensor will choose the method best suited to produce this functionality and the following
requirements are considered to be general in nature. The specific functionality may be influenced
by which approach is used as a foundation for the final solution.
1. (Nice to have) - The system will track the number of times in succession the estimated bills
and late notices happen in order to produce an additional penalty of 25% when the estimated
bills/late notices are sent out three (3) times in succession.
,
2. (Nice to have) - The system will generate a report that shows the total amount owed by a
customer AND a detailed breakdown of tha1 balance (principle, penalty, interest).
3. (Mandatory) - The system will keep temporary notes on each customer account with 1he
option to delete them.
4. (Mandatory) - The system will produce estimated assessments and delinquent letters to
customers. An estimated assessment is usually the amount of a customer's last assessment plus a
significant percentage in order 10 induce them to pay the correc1 amoun1.
5. (Nice to have) - The customer statement will show the breakdown of taxes, penalties, in1erest.
6. (Nice to have) - The system will produce a report that contains tax s1atus information
indicating' whether a customer is a 'zero' status (return sent back with no reported tax liability) or
a 'none' (re1urn not sent back).
L1CENSE,SAM
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Exhibit A
BILLING/P A YMENT SCHEDULE
BillinglPayment Schedule:
LlCENSE,SAM
License fees (Object Code) -
30% of all license and concurrent user fees, on execution of the Agreement;
30% of all license fees and concurrent user fees on application delivery to Licensee;
40% of each module license fee on acceptance by Licensee
License fees (Source Code) - 100% on delivery of source code to Licensee
Third-party products, tools - 100% on execution of the Agreement
Installation/Setup & Training -
30% on execution of the Agreement;
30% on application delivery to Licensee;
40% on acceptance by Licensee
All other charges such as meals, food, travel, out of pocket costs - Billed and payable as they occur
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Exhibit A
InForunfIag'h;p Support Program (Optional)
Scope of Service. Licensor shall render accelerated support and services for components identified with a dollar
amount in the column headed "Annual Support $" on Exhibit A, provided that Licensee licenses, and maintains
under uninterrupted support from Licensor, the active and continual use of the InForum Financials and two of
the following selections:
.
Payroll, Benefits, Position Control;
Human Resources, Applicant Tracking;
GIS (parcel Manager, Permits & Inspections)
Priority Service and Support, The InForunl"-kip Support Program represents significant advantages that Will
save time, energy and money. It is designed to be an ongoing reward system for participating members of the
program in the following ways:
.
Reduced License Fees - 35% discounts on license fees for all future InForum solutions;
Reduced Hourly Rates - 35% discounts on hourly rates for all types of services;
Reduced Equipment Costs - Purchase equipment via reseller channels at Eden's cost;
'Head of the line' Support - Priority support without exceptions for InForum Flagship users;
Long-term Support Rates - Unconditional, guaranteed support rates as per Section 9.2;
License-free GUl Upgrade - License-free Gill (Graphical User Interface) version of InForum;
Priority Access to Products - Priority attention when ordering new InForum products/services;
Source Code Protection - Source code maintained on-site for ultimate support, protection,
.
Customer Responsibilities, Participants in the Flagship Support Program are encouraged to contribute to the
partnership in the following ways:
.
Customer Reference - Provide supportive references to other prospective Eden customers;
Customer Demonstration - Host a reasonable number of potential Eden customers;
Customer Feedback - Provide critical analysis and feedback on new InForum modules;
Customer Promotion - Promote Edel\ Systems and the InF orum solution whenever possible.
.
.
Acceptance:
[Licensor]
Eden Systems, Inc.
By: Dennis L. Salts
Signature:
Title: Vice President
Date:
[Licensee]
City of Aspen, Colorado #'
By: S-Irh- I-/. 6''''r_~.A(' ..(. r /i.-...1
Signature ~ Ir~
Title: 0 +7 /'7~h-
Date: 2.- - ~;2. - 9' S-
l"1~r'r-
LICENSE.SAM
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Eden Systems, Incorporated
Software License and Use Agreement
THIS AGREEMENT, made and entered into by and between Eden Systems, InCOIpOrated (hereinafter "Licensor"),
a coIpOration duly authorized and existing wder the laws of the State of Washington and having its principal
offices at 5015 Tieton Drive; Smte A; Yakima, Washington 98908, and:
Name:
Address:
City, State, Zip Code:
City of Aspen
130 South Galena St.
Aspen, Colorado 81611
(hereinafter "Licensee").
Licensor desires to grant to Licensee and Licensee desires to acquire from Licensor a non-excJusive right and
license to use certain computer software as hereinafter defined. Both parties agree they are able to comply with
and will satisfy the tews and conditions as set forth in this Agreement. Both parties, intending to be legally
bowd, agree to the following:
SECTION 1 - DEFINITIONS
The definition oftews set forth in this section shall apply when such tews are used in this Agreement, its
exhibits, and any amendments:
1.1 "Licensed Program." The computer progrOUJi desigDllted by Licensor as InForum "', or Command
Series ~including object code, as well as related procedural code, and documentation of any type which describes
it. The system is licensed for use on the following:
Computer ProcessorlModel:
Users:
Novell LAN
4 Users
1.2 "Licensed Documentation," The system user manuals, and other documentation made available by Licensor,
for the Licensed Program.
1.3 "Enhancements." Changes or additions, other than Maintenance Modifications, to the Licensed Program or
Licensed Documentation that add significant new nmctions or substantially improved perfowance thereto by
changes in system design or coding.
1.4 "Error;" Problem caused by incorrect operation of the computer code of the Licensed Program or an
incorrect statement or diagram in Licensed Documentation thaI produces incorrect results or causes incorrect
actions to occur.
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2.4 Limited Support of Licensed Program. Licensor shall furnish to Licensee such Maintenance Modifications
as may be developed by Licensor generally for licensees of the Licensed Program.
2.5 Assignment of Rigbts in Licensee Maintenance and Enbancement Modifications. All right, title, and
interest in all Maintenance and Enhancement Modifications developed by Licensee during the lerm bereofremains
with Licensor. Licensee agrees that such modifications shall be used by Licensee, and will nol be distributed or
otherwise made available to any third party other than Licensor.
2.6 Availability of Licensor Enbancements. Licensor agrees to offer to Licensee a license to Enhancements that
Licensor develops and offers generally to licensees of the Licensed Program at its announced license fees for sUch
Enhancements.
2.7 Licensee Notification and Delivery of Materials. Licensee shall notify and deliver to Licensor one copy of
any Maintenance and Enhancement Modifications developed by Licensee within a reasonable period after
development.
SECTION 3 - TITLE TO MATERIALS
3.1 Title to Licensed Program and Licensed Documentation. All right, title, and interest in and to the Licensed
Program and Licensed Docmnentation, including the media on which the same are furnished to Licensee, are ahd
shall remain with Licensor. Licensee aclmowledges that no such rights, title, or interest in or to the Licensed
Program and the Licensed Documentation is granted under this Agreement, and no l!Uch assertion shall be maQc by
Licensee. Licensee is granted only a limited right of use of the Licensed Program and Licensed Documentation as
set forth herein, which right of use is not coupled with an interest and is revocable in accordance with the terms of
this Agreement.
3.2 Title to Enbancements and Maintenance Modifications; Restrictions on Use, Disclosure, Access, and
Distribution. All right, title, and interest in and to any Enhancements and Maintenance Modifications developed
by either Licensor or by Licensee shall be and remain with Licensor. Licensee shall treat all such Enhancements
and Maintenance Modifications, whether developed by Licensor or by Licensee, in accordance with the restricti()ns
and limitations set forth herein respecting Licensed Programs and Licensed Docmnentation.
;
SECTION 4 - FEES AND PAYMENTS
4,1 License Fee. In consideration of the licenses granted hereunder, Licensee shall pay Licensor a one-time
license fee as further defined in Exhibit A, attached hereto.
4.2 Support Fee. Software Support is subject to the terms and conditions of Section 9.0, Software Support, and
may be offered, at the Licensor's sole option, on a year by year basis,
4,3 Per Diem. Charges for meals, parking and other incidentals associated with the delivery of the Licensed
Program will be limited to the amount allowed to the employees of Licensee while carrying oul the duties of the
Licensee. It is the responsibility of the Licensee to notify Licensor of that limitation upon execution of this
Agreement.
4.4 Otber Costs. Other costs, including but not limited to air/trainltaxi fare, lodging, car rental, parking, frelght
costs and reproduction charges incurred by Licensor on account of this Agreement, shall be billed 10 the Licensee.
Licensor s~ bave the right to charge a 5% administrative fee for all fees and charges specified in this Section.
4.5 Payment. The License fee set forth herein shall be paid by Licensee according to the payment schedule sel
forth in Exhibil A.
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SECTION 6 - LIMITED WARRANTY, LIMITATION OF LIABILITY, AND INDEMNITY
6,1 Limited Warranty Against Infringement. Licensor warrants that the Licensed Program and Licensed
Docmnentation as delivered to Licensee do not infunge any third-party rights in patent, copyright, or trade secret
in the United States,
6.2 Limited Warranty of Conformity. Licensor warrants, for the benefit only of Licensee, that for the life of the
Agreement, the Licensed Program will conform in all material respects to the Licensed Docmnentation (except for
modifications made by Licensee or by Licensor at the request of Licensee), but only if Licensee maintains
unintenupted Software Support from the date of execution of this Agreement. Licensor assumes no responsibil,ity
for obsolescence of the Licensed Program nor for lack of conformity occuning from Licensee's failure to update the
Licensed Program with distributed Enhancements, Maintenance Modifications, or Error Corrections.
6.3 Exclnsive Remedy. As the exclusive remedy of Licensee for any nonconformity or defect constituting an
Error in the Licensed Program for which Licensor is respousible, Licensor shall use commercially reasonable
efforts to provide Maintenance Modifications with respect to such Errol, However, Licensor shall not be obligated
to correct, cure, or otherwise remedy any Error in the Licensed Program resulting from any (1) modification of the
Licensed Program by Licensee, (2) failure of Licensee to notifY Licensor of the existence and nature of such
nonconformity or defect promptly upon its discovery.
6.4 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, LICENSOR MAKES NO
WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING OR RELATING TO THE LICENSED
PROGRAM OR LICENSED DOCUMENTATION OR TO ANY OTHER MA TERl~S FURNISHED OR
PROVIDED TO LICENSEE HEREUNDER. LICENSOR SPECmCALL Y DISCI-AIMS ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT
TO SAID MATERlALS OR THE USE THEREOF,
6.5 Limitation of Liability, EXCEPT WITH RESPECT TO (A)LIABILITY ARISING FROM CLAIMS OF
INFRINGEMENT OF THIRD-PARTY RlGIITS IN THE UNITED STATES IN COPYRIGIIT, TRADE SECRET,
OR PATENT, IN NO EVENT SHALL LICENSOR BE LIABLE UNDER ANY CLAIM, DEMAND, OR ACTION
ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR LACK THEREOF UNDER TIllS
AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL
DAMAGES, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
CLAIM, DEMAND, OR ACTION. :
6.6 Licensee Indemnification. Licensee shall and does hereby agree to indemnify, hold hannless, and save
Licensor from liability against any claim, demand, loss, or action (1 )resulting from Licensee's use or modificati9n
of the Licensed Program and Licensed Docmnentation and (2)alleging that any Maintenance Modifications made
by Licensee infunge any third-party rights in the United States respecting copyright, trade secret, or patent. The
foregoing indemnification is predicated upon Licensor (I )fully cooperating with Licensee in the defense orisettlement of such actions and (2)giving Licensee prompt written notice of any claim, demand, or action for which
indemnification is sought.
6.7 Licensor Indemnification. Licensor shall and does hereby agree to indemnify, hold hannless, and save
licensee from liability against any claim, demand, loss, or action alleging that the licensed Program and Licensed
Docmnentation or any Maintenance Modifications or Enhancements made by licensor infunge any third-party
rights in the United States respecting copyright, trade secret, or patent. The foregoing indemnification is
predicated upon Licensee (1 )fully cooperating with Licensor in the defense or settlement of such actions and
(2)giving Lirensor prompt written notice of any claim, demand, or action for which indemnification is sought.
6.8 Survival of Terms, The provisions of this Section 6 shall SUIVive termination of this Agreement for any
reason,
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the Licensed Program for license fees, training charges, and other related service fees and charges as
specified elsewhere in this Agreement.
c. VCS (Version Control System) Maintenance - Librarying of Licensed Program for Licensee complete
with modifications authorized by Licensee, performed by Licensor, and delivered to Licensee site for use.
9,2 Fees and Charges. Licensee shall pay Licensor annual support charges for basic support for the Licensed
Program based on 15% of the amounts listed in the Support Basis column of Exhibit "A". In addition, if support
of escrowed source code is applicable, as designated on Exhibit "A", it shall be billed to the Licensee by Licensor
based on an additiona12.5% of the amOlmts listed in the Support Basis column of Exhibit "A" in addition to any
charges related to escrow fees, handling, storage, and .rlmini<trative fees related to the terms of an Escrow
Agreement to be developed by both parties.
Licensor reserves the right to change its support rate for both basic or escrowed source code at the beginning of
each Support Agreement Term, provided that no such change shall be an increase of greater than 10% of the
support rate for the prior year and that no such increase will be effective until at least 90 days after Licensor has
given Licensee written notice of such change.
All annual support charges are due and payable on or before the I st of January of each Support Agreement Term.
Failure to make such payment shall constitute cancellation and termination of support by Licensee and no further
service or support will be providcd by Licensor.
Charges for meals, parking and other incidentals will be limited to the amount allowed to the employees of
Licensee while carrying out the duties of the Licensee.
Other costs, including but not limited to air/trainltaxi fare, lodging, car rental, parking, freight costs and
reproduction charges incurred by Licensor, will be reimbursed by Licensee. Licensor shall. have the right to charge
a 5% administrative fee for all fees and charges specified in this Section.
The fees and charges specified in this section are exclusive of any federal, state, or local excise, sales, use, and
similar taxes assessed or imposed with respect to the service and support provided hereunder. Licensee shall pay
any such amounts upon request of Licensor accompanied by evidence of imposition of such taxes.
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9.3 Licensee Responsibilities. Licensee shall be responsible for procuring, installing, and maintaining all
equipment, telephone lines, communications interfaces, and other hardware necessary to operate the Licensed
Program and to obtain from Licensor the services ca1led for according to Licensor's then existing policy.
9,4 Proprietary Rights. To the extent that Licensor may provide Licensee with any Error Corrections or
Enhancements or any other software, including any new software programs or components, or any compilations or
derivative works of the Licensed Program prepared hy Licensor, Licensee may (l)install one copy of the Licensed
Program, in the most current form provided by Licensor, in Licensee's own facility; (2)use such Licensed Program
in a manner cousistent with the requirements of the Agreement, forpUf!l9ses of serving Licensee's internal
business needs; and (3)make up to thIee (3) copies of the Licensed Program in machine-readable form for
nonproductive backup purposes only. Licensee may not use, copy, or modifY the Licensed Program, or make any
copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor.
The Licensed Program is and shall remain the sole property of Licensor, regardless of whether Licensee, its
employees, or contractors may have contributed to the conception of such work, joined in the effort of its
development, or paid Licensor for the use of the work product. Licensee shall from time to time take any furthcr
action and execute and deliver any further instnunent, including documents of assignment or acknowledgment,
that Licensor may reasonably request in order to establish and perfect its exclusive ownership rights in such works.
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Exhibit A
COMMAND SERIES DELIVERABLES
Products, Smices and Equipment
InstalIISctup Da~ 1]; TralningDa). 0
Senices,
Other 3rd
Party
Products:
Published
License Fee
(Support Sa,;,)
Upgrade
CreditlDisct
. Total
Accounts Receivable; (I) $O.QO
Business Licensing; (2) $O.QO
CAFR; (J) $0.00
Capital Projects; (2) $0.00
Cash Receipting Interface; (1/2) $O,QO
Financial Accounting; (3) $O.QO
Fixed Assets; (1/2) $O.QO
InventorylEquiplRepair; (2) $O.QO
Hand Held Interface; (1/2) $O.QO
Payroll 5.0; (4) $O.QO
Personnel; (1/2) $0.00
Position Control; (1/2) $0.00
ReqlPurchasing; (3) $0.00
Recreation Management; (2) $0.00
Special Assessments; (2) $0,00
Utility Management 5.0; (5) $0.00
Utility Billing 3.5; (3) $0.00
Services:
Enhancements ; $0.00
Con~tin~nagement : $0,00
Data File Conversion Services $0,00
Program File Conversion Services $0.00
Training $0.00
Installation/Setup $0.00
Equipment, Third Party Applications,
Database Software, Tools:
lQ Report Writer for Windows, 4 users
Other:
$2000.00
$2000.00
Taxes $O.QO
Freight $0.00
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Total ' , "., ., " , .,$2000.00 I '., ,$0.00 '. $0.00 $2000.QO
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g:llicensesllicense.sam
Exhihit A
BILLING/PA YMENT SCHEDULE
Licensee shall pay Licensor according to the following schedule of payments and shall not exceed the amounts
shown with the exception of those items marked as "estimated" which are variable costs of the project.
Licensor shall submit invoices during the term of this Agreement based on the cost of products installed, but not
more than twice per month, Costs incurred by Licensor which are not identified herein shall not be paid unless
authorized by written instrument executed by an authorized agent of the Licensee.
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Totals "..,,' ,". ." ., $2000,00 $0.00 .' $0.00 $2000.00
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licensee shall not assen any right, title, or interest in such works, except for the non-exclusive right ofuse granted
to licensee at the time of its delivery or on-site development.
9.5 Disclaimer of Warranty and Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH
HEREIN, LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE
SYSTEM OR THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
9.6 Termination of Support. Suppon may be terminated as follows:
a, Upon the termination of the License Agreement; or
b, Upon the expiration of the then current Suppon Agreement Term, provided that at least 60
days' prior written notice is given to the other patty; or
c. Upon 60 days' prior written notice if the other patty has materially breached the provisioILS of
this Agreement and has not cured such breach within such notice period.
IN WITNESS WHEREOF, the parties have caus
Agreement to be executed as set forth below.
PLicensor] ~
By: Dennis L. Its
Signature:
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Title: Vice President
Date:
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Date:
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SECTION 7 - TERM AND TERMINA nON
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7.1 Term. This Agreement shall commence on the date and year first above written and shall continue tilltil
terminated in accordance with the terms thereof.
7.2 Termination by Either Party. Either party may terminate this Agreement upon 60 days written notice to the
other party if the other party commits a breach of any term hereof and fails to cure said breach within that 60-day
period. Such notice shall set forth the basis of the termination.
7.3 Actions Upon Termination. Upon termination of this Agreement for any reason, licensee shall immediately
cease use of, and return forthwith to licensor, the licensed Program and licensed Docmnentation, and any copies
or portions thereof, including Maintenance Modifications ,or Enhancements.
SECTION 8 - MISCELLANEOUS
8,1 Entire Agreement. The provisions herein constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede all prior agreements, oral or written, and all other communications relating
to the subject matter hereof. No amendment or modification of any provision oftms Agreement will be effective
unless set forth in a docmnent that purpons to amend this Agreement and that is executed by both parties hereto.
8.2 No Assignment. Licensee shall not sell, transfer, assign, or subcontract any right or obligation hereunder
without the prior written consent of licensor. Any act in derogation of the foregoing shall be null and void;
provided, however, that any such assignment shall not relieve licensee of its obligations under this Agreement.
8.3 Force Majeure. Excepting provisions of this Agreement relating to payment of license fees, concurrent user
fees, and protection of licensor's Proprietary Information, neither party shall be in default of the terms hereof if
such action is due to a natural calamity, or similar causes beyond the control of such party.
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8.4 Governing Law. This Agreement shall be governed by and construed in accordance with laws of the state in
which an action, including arbitration, is brought. Venue will be deemed appropriate in either the counties of
Yakima, Washington or the county seat of the Licensee, .
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8.5 Severability. If any provision of this Agreement is held by a court of competent jmisdiction to be contrary to
law, the remaining provisions of this Agreement will remain in full force and effect.
8.6 Notice. Any notice required or permitted to be made or given by either party under this Agreement shall be
made in writing and delivered by hand or by certified mail, postage prepaid, addressed as first set forth above or to
such other address as a party shall designate by written notice given to the other party.
SECTION 9 - SOFfW ARE SUPPORT
9.1 Scope of Service. licensor shall render support and services between the hours of8AM and 5PM,
PST(Paciiic Standard Time) or PDT(Paciiic Daylight Time), whichever is in effect, for the following:
a. Telephone support - Calls related to operation of the licensed Program, reporting ofa potential eITor
coddition or abnormal termination of a program, or request for minor assistance related to the licensed
Program:
b, Support Enhancements - Selected Enhancements, the nature and type ofwmch shall be determined
solely by the licensor. Such provision shall not preclude licensor from providing other Enhancements of
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4.6 Taxes. The license fee specified in Exhibit A hereof is exclusive of any federal, state, or local excise, sales,
use, and similar taxes assessed or imposed with respect to the computer software licensed hereunder. Licensee
shall pay any such amounts upon request of Licensor accompanied by evidence of imposition of such taxes.
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SECTION 5 - PROPRIETARY PROTECTION OF MATERIALS
5.1 Acknowledgment of Proprietary Materials; Limitations on Use. Licensee acknowledges that the Licensed
Program and Licensed Documentation are IDlpublished works for pmposes offederal copyright law and embody
valuable confidential and secret information of Licensor, the development of which required the expenditure of
considerable time and money by Licensor. Licensee shall treat the Licensed Programs and Licensed
Docmnentation in confidence and shall not use, copy, or disclose, nor permit any of its personnel to use, copy, or
disclose the same for any pmpose that is not specifically authorized IDlder this Agreement.
5.2' Secure Handling. Except for copies of the Licensed Program installed and operated upon its computers as
permitted hereunder, Licensee shall require that the Licensed Program and Licensed Documentation be kept on
Licensee's premises which shall be maintained in a manner so as to reasonably preclude unauthotized persons from
gaining access thereto, and Licensee shall permit access only as necessary for either party's use thereof in
accordance with the terms of this Agreement.
5,3 Proprietary Legends, Licensee shall not permit anyone other than Licensor to remove any proprietary or
other legend or restrictive notice contained or included in any material provided by Licensor. Licensee may
reproduce the written documentation provided by Licensor, provided that such reproductions are for the private
internal use of Licensee, and all such reproductions bear Licensor's copyright notices and other proprietary
legends. '
5,4 Licensee's Obligations Respecting Access. Licensee shall limit use of and access to the Licensed Program
and Licensed Docmnentation to such personnel of Licensee as are directly involved in thc use thereof by Licensee.
Licensee shall prevent all Licensee personnel from having access to any such information that is not required in
the performance of their duties for Licensee. Licensee shall, as requested by Licensor, provide Licensor with
written notice of all personnel of Licensee who have been accorded access to the Licensed Programs and Licensed
Docmnentation in the course of their employment by Licensee.
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5.5 Injunctive Relief. Licensee recognizes and ackno:.vledges that any use or disclosure of the Licensed Program
or Licensed Documentation by Licensee in a manner ilii:onsisteni with the provision of this Agreement may cause
Licensor irreparable damage for which remedies other than injunctive relief may be inadequate, and Licensee
agrees that in any request to a court of competent jurisdiction by Licensor for injunctive or other equitable relief
seeking to restrain such use or disclosure, Licensee will not urge that such remedy is not appropriate IDlder the
circumstances.
5.6 Technical Protections. Licensor may from time to time prescribe password protection as an additional
security measure for the Licensed Program, and Licensee shall cooperate with Licensor in connection therewith.
5,7 Security Audit. Licensor shall have the right to make visits to the Licensee's computer facilities to review
security measures respecting the Licensed Program and Licensed Documentation, and, if deficiencies are identified
by Licensor, Licensee shall implement such additional security practices as are reasonably necessary to adequately
ensure the security of the Licensed Program and Licensed Docmnentation.
5.8 Survival of Terms. The provisions of this Section 5 shall survive termination of this Agreement for any
reason. I,
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g:lJicenseslJicense.sam
1.5 "Error Correction." Either a software modification or addition that, when made or added to the Licensed
Program, establishes material conformity of the Licensed Program to the functional specifications, or a procedure
or routine tha1, when observed in the regular operation of the Licensed Program, e1iminates the practical adverse
effect on Licensee of such non-conformity.
1.6 "Maintenance Modifications." Modifications or revisions to the Licensed Program or Licensed
Documentation that correct Errors.
1.7 "Specifications". The functional performance parameters of the Licensed Program effective on the date of
this Agreement, as set forth in on-line documentation imbedded within the Licensed Program.
1.8 "Proprietary Information," Unpublished "know-how," and "trade secrets", which shall include (without
limitation) computer programs, program designs, algorithms, subroutines, system specifications, test data, charts,
graphs, operation sheets, and all other technical infonnation, owned by Licensor or under its control, relating to
the development and production or use of the Licensed Program and the design, configuration, programming, and
protocol of the Licensed Program.
1.9 "Normal Working Hours." The hours between 8AM and 5PM PST(Pacific Standard Time) or PDT(Pacific
Daylight Time), whichever is applicable, on the days Monday through Friday, excluding regularly scheduled
holidays of Licensor.
1.10 "Releases," New versions of the Licensed Program, which new versions may include both Error
Corrections and Enhancements. "
1.11 "Support Agreement Term." A calendar year, commencing on January I and ending on December 31,
during which certain support and services are provided subject to the terms and conditions set forth in Section 9.0,
Software Support.
SECTION 2 - GRANT OF LICENSE
2.1 Scope of License. Subject to compliance by Licensee with the terms hereof, Licensor hereby grants to
Licensee, in perpetuity unless terminated as provided herein, a personal, non-exclusive, nontransferable license
(without the right of sublicense), to:
a. Install, use, and execute the Licensed Program on computers owned or leased and used by
Licensee at its facilities in the United States in support of the internal business activities of Licensee;
b. Use the Licensed Documentation only in conjunction with installation and use of the Licensed
Program; and "
c, Prepare Maintenance Modifications or Enhancements to the source code of the Licensed Program,
provided source code is offered and included in this Agreement, and use such works only as
authorized in Sections 2. 1 (a) and 2,I(b).
2.2 Delivery of Materials, Licensor sha11 deliver one copy of the Licensed Program and Licensed Documentation
to Licensee within a reasonable time following fina1 execution of this Agreement.
2.3 Necessi/y for third-party Software. Licensee acknowledges tha1 in order to be executed, the Licensed
Program requires certain third-party software, as specified by the Licensor, the acquisition ofwhicb shall be the
sole responsibility of Licensee to obtain and maintain in its most current release. Licensee agrees that prior to use
of the Licensed Program in any manner, Licensee will obtain necessaty licenses from the vendors of such
third-party software.
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Exhibit A
SUGGESTED IMPLEMENTATION SCHEDULE
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Purchase of file server hardware Day I Day 20
and delivery of hardware to
Licensor (Licensee)
Configuration offile server and Day 21 Day 60
loading of Licensed Progranl
(Licensor)
Phase II
Training of primary and secondary Day 61 Day 120
network administrators (Licensee)
Implementation planning, Day 121 Day 165
hardware installation on-site,
planning for user training
(LicenseelLicensor)
User training (LicenseelLicensor) Day 166 Day 270
completed implementation Day 271 Day 271 e
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Page 16
Exhibit A
SALES TAX REVISIONS (continued)
7. (Mandatory) - The system will have the capability of sending out tax billings on a month,
quarter, annual, on-time, or seasonal (winter/summer) basis.
8. (Mandatory) - The system will generate automated "Letters of Deficiency" when a customer
paymen1 for taxes is insufficient.
9. (Nice to have) - A reasonable effort will be made to supply information in the system to satisfy
Licensee's need for Business Licensing information but there is no commitment on the part of
Licensor to provide any integration between the Command Series Business Licensing module and
any eventual tax module developed. Specific information will be dependent in part on the
development approach taken by Licensor.
LICENSE. SAM
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Exhibit A
NOTES TO INFORUM DELIVERABLES
(*) The IQ Report Writer is licensed for a maximum of six (6) specific users and is not to be confused with
concurrent user capability;
The Cash Receipting Interface is designed for but DOES NOT INCLUDE the QSI Automated Cash Receipting
system;
Data me conversion service charges and Travel Expenses are estimates only; Fourgen tools are for a Fourgen
Class 'E' machine and future upgrades to hardware may result in additional cost to Licensee;
Source code is provided on-site at no charge unless Licensee opts to have source code in escrow which wonld
result in additional support charges and related fees not included here.
(**) A 'not-to-exceed' price for described Sales Tax Revisions listed on Exhibit A, "Sales Tax Revisions".
(*) Eagle Data Interchange: Licensor will provide standardized record format and report any changes in that
format to Eagle for financial data interchange and report any modifications to this standard as they occur. Licensor
will provide first point of contact for resolution of Data Interchange related incidents. Licensor assumes no
responsibility for Eagle product, service or support. (
L1CENSE.sAM
Page 12
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SYSTEM OR THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE,
9.6 Termination of Support. Support may be terminated as follows:
a. Upon the termination of the License Agreement; or
b. Upon the e:\'Piration of the then current Support Agreement Term, provided that at least 60
days' prior written notice is given to the other party; or
c. Upon 60 days' prior written notice if the other party has materially breached the provisions of
this Agreement and has not cured such breach within such notice period.
IN WITNESS WHEREOF, the parties have cau.sed this Agreement to be executed as set forth below.
[Licensor)
Eden Systems, Inc.
By: Denni~L. I
Signature:
Title: Vice sident
Date:
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LICENSE,SAM
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City of Aspen, Colorado
By S"-k/I_ i/J]__.-L ~ ,4"'7 ;'1~.........
Signature: ~ i/~
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8.12 Contingent Fees. The Licensor warrants that it does not employ or retain any company or third person,
other than a bona fide employee, to solicit or secure this Agreement, and that it has not paid or agreed to pay any
company or third person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or
any other consideration contingent upon or resulting from the award or making of this Agreement.
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8.13 Independent Contractor. It is expressly acknowledged and unders100d by the parties that nothing contained
in this Agreement shall result in, or be cons1rued as establishing an employment relationship. Licensor shall be,
and shall perform as an independent contractor who agrees to ose best efforts to provide the products and selVices
described herein. No agent, employee, or selVant of Licensor shall be, or shall be deemed to be, the employee,
agent or selVant of the Licensee.
Licensee is interested only in the results obtained under this Agreement. The manner and means of conducting the
work are under the sole control of the Licensor. None of the benefits provided by Licensee to its employees
including, but not limited to workers' compensation insurance and unemployment insurance, are available from
Licensee to the employees, agents or selVants of the Licensor. Licensor shall be solely and entirely responsible for
its acts and for the acts of Licensor's agents, employees, selVants and subcontractors during the performance of this
Agreement. Licensor shall indel1ll1ifY Licensee to the eX1ent described in this Agreement and shall assume all
liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local
taxes or contributions imposed or required under unemployment insurance, social security and income tax law,
with respect to Licensor andlor Licensor's employees engaged in the performance of the services agreed to herein.
Section 9
SOFTWARE SUPPORT
9.1 Scope of Service. Licensor shall render support and services between the hours of 8AM and 5PM,
PST(pacific Standard Time) or PDT(pacific Daylight Time), whichever is in effect, for the following:
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a. Telephone support - Calls related to operation of the Licensed Program, reporting of a potential error
condition or abnormal termination of a program, or reques1 for minor assistance related to the Licensed
Progranl;
b. Support Enhancements - Selected Enhancements, the nature and type of which shall be determined
solely by the Licensor. Such provision shall riot preclude Licensor from providing other Enhancements of
the Licensed Program for license fees, traiuing charges, and other related service fees and charges as
specified elsewhere in this Agreement.
c. VCS (Version Control System) Maintenance - Librarying of Licensed Program for Licensee complete
with modifications authorized by Licensee, performed by Licensor, and delivered to Licensee site for ose,
9.2 Fees and Charges. Licensee shall pay Licensor annual support charges for basic support for the Licensed
Program based on the amounts listed in the column headed Annual Support $ on Exhibit "A".
Support rates will be protected, under the provisions in Exhibit A, Flagship Support Program, for a period of five
(5) Support Agreement Terms from date of first execution.
Licensor reselVes the right, after this iuitial term of five (5) Support Agreement Terms, to change its support rates
at the beginning of each Support Agreement Term, provided that no such change shall be an increase of greater
than 10% of the support rate for the prior Support Agreement Term and that no such increase will be effective
until at least 90 days after Licensor has given Licensee written notice of such change.
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Page 8
PROVISIONS OF TIllS AGREEMENT, IN EXCESS OF THE PURCHASE PRICE OF THE LICENSED
PROGRAM, AND SERVICES PROVIDED BY LICENSOR AS DESCRIBED HEREIN AND IN NO EVENT
SHALL EITHER PARTY BE LIABLE UNDER ANY CLAn\.1, DEMAND, OR ACTION ARISING OUT OF OR
RELATING TO ITS PERFORMANCE OR LACK THEREOF UNDER TIllS AGREEMENT FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER OR
NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, DEMAND, OR
ACTION.
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6.6 Licensee Indemnification. To the ex1ent permitted by law, Licensee shall and does hereby agree to
indeD1DifY, hold harmless, and save Licensor from liability against any claim, demand, loss, or action (I)resulting
from Licensee's use or modification of the Licensed Program and Licensed Documentation and (2)alleging that any
Maintenance Modifications made by Licensee iofringe any third-party rights in the United States respecting
copyright, trade secret, or patent. The foregoing indemnification is predicated upon Licensor (I )fuIly cooperating
with Licensee in the defense or settlement of such actions and (2)giving Licensee prompt written notice of any
claim, demand, or action for which indemnification is sought.
6.7 Licensor Indemnification, Licensor shall and does hereby agree to indeD1DifY, hold harmless, and save
Licensee from liability against any claim, demand, loss, or action alleging that the Licensed Program and Licensed
Documentation or any Maintenance Modifications or Enhancements made by Licensor iofringe any third-party
rights in the United States respecting copyright, trade secret, or patent. The foregoing indemnification is
predicated upon Licensee (I )fully cooperating with Licensor in the defense or settlement of such actions and
(2)giving Licensor prompt written notice of any claim, demand, or action for which indemnification is sought.
6.8 Survival of Terms. The provisions of this Section 6 shall survive termination 'of this Agreement for any
reason.
Section 7
TERM AND TERMINA nON
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7.1 Term. This Agreement shall commence on the date and year first above written and shall continue until
terminated in accordance with the terms thereof.
7.2 Termination by Either Party. Either party may terminate this Agreement upon 60 days written notice to the
other party if the other party commits a breach of any term hereof and fails to cure said breach within that 60-day
period. Such notice shall set forth the basis of the termination.
7.3 Actions Upon Termination. Upon termination of this Agreement for any reason, Licensee shall immediately
cease use of, and return forthwith to Licensor, the Licensed Program and Licensed Documentation, and any copies
or portions thereof, including Maintenance Modifications or Enhancements.
Section 8
MISCELLANEOUS
8.1 Entire Agreement. The provisions herein constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede all prior agreements, oral or written, and all other communications relating
to the subject matter hereof. No amendment or modification of any provision of this Agreement will be effective
unless set forth in a document that purports to amend this Agreement and that is executed by both parties hereto.
8.2 No Assignment. Licensee shall not sell, transfer, assign, or subcontract any right or obligation hereunder
without the prior written consent of Licensor. Any act in derogation of the foregoing shall be null and void;
provided, however, that any such assignment shall not relieve Licensee of its obligations under this Agreement.
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LICENSE. SAM
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4.2 Support Fee. Software Support is subject to the terms and conditions of Section 9.0, Software Support, and
may be offered, at the Licensor's sole option, on a year by year basis with increases in support fees protected for a
period offive (5) Support Agreement Terms with the condition that the terms of the Flagship Support Program are
in effect as described in Exhibit A.
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4.3 Per Diem, Charges for meals, parking and other incidentals associated with the delivery of the Licensed
Program will be limited to the amount allowed to the employees of Licensee while carrying out the duties of the
Licensee, It is the responsibility of the Licensee to notifY Licensor of that limitation upon execution of this
Agreement.
4.4 Other Costs. Other costs, including but not limited to air/trainitaxi fare, lodging, car rental, parking, freight
costs and reproduction charges are the responsibility of the Licensee. Licensee may incur such costs by incurring
them directly on behalf of the Licensor.
Such costs incurred by Licensor, and authorized by Licensee on account of this Agreement, shall be billed to the
Licensee. Licensor shall have the right to charge a 5% administrative fee for all such fees and charges.
4.5 Payment. The License fee set forth herein shall be paid by Licensee according to the payment schedule set
forth in Exhibit A.
4.6 Taxes. The license fee specified in Exhibit A hereof is exclusive of any federal, state, or local excise, sales,
use, and similar taxes assessed or imposed with respect to the computer software licensed hereunder. Licensee
shall pay any such amounts upon request of Licensor accompanied by evidence of imposition of such taxes.
Section 5
PROPRIETARY PROTECTION OF MATERIALS
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5.1 Acknowledgment of Proprietary Materials; Limitations on Use, Licensee acknowledges that the Licensed
Program and Licensed Documentation are unpublished works for purposes offederal copyright law and embody
valuable confidential and secret information of Licensor, the development of which required the e)qx:nditure of
considerable time and money by Licensor. Licensee shall treat the Licensed Programs and Licensed
Documentation in confidence and shall not use, copy, or disclose, nor permit any of its personnel to use, copy, or
disclose the same for any purpose that is not specifically authorized under this Agreement.
5.2 Secure Handling. Except for copies of the Licensed Program installed and operated upon its computers as
permitted hereunder, Licensee shall require that the Licensed Program and Licensed Documentation be kept on
Licensee's premises which shall be maintained in a manner so as to reasonably preclude unauthorized personsfrom
gaining access thereto, and Licensee shall permit access only as necessary for either party's use thereof in
accordance with the terms of this Agreement.
5.3 Proprietary Legends, Licensee shall not permit anyone other than Licensor to remove any proprietary or
other legend or restrictive notice contained or included in any material provided by Licensor. Licensee may
reproduce tile written documentation provided by Licensor, provided that such reproductions are for the private
internal use of Licensee, and all such reproductions bear Licensor's copyright notices and other proprietary
legends.
5.4 Licensee's Obligations Respecting Access. Licensee shall limit use of and access to the Licensed Program
and Licensed Documentation to such personnel of Licensee as are directly involved in the use thereof by Licensee.
Licensee shall prevent all Licensee personnel from having access to any such information that is not required in
the performance of their duties for Licensee. Licensee shall, as requested by Licensor, provide Licensor with
written notice of all personnel of Licensee who have been accorded access to the Licensed Programs and Licensed
Documentation in the course of their employment by Licensee.
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LICENSE.SAM
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1.5 "Error Correction." Either a software modification or addition that, when made or added to the Licensed
Program, establishes material conformity of the Licensed Program to the functional specifications, or a procedure
or routine that, when observed in the regular operation of the Licensed Program, eliminates the practical adverse
effect on Licensee of such non-conformily.
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1.6 "Maintenance Modifications." Modifications or revisions to the Licensed Program or Licensed
Documentation that correct Errors.
1.7 "Specifications". The functional performance parameters ofthe Licensed Program effective on the date of
this Agreement, as set forth in on-line documentation imbedded within the Licensed Program.
1.8 "Proprietary Information." Unpublished "know-how," otherwise known as "trade secrets", which shall
include (without limitation) computer programs, program designs, algorithms, subroutines, system specifications,
test data, charts, graphs, operation sheets, and all other technical information, owned by Licensor or under its
control, relating to the development and production or use of the Licensed Program and the design, configuration,
programming, and protocol of the Licensed Program.
1.9 "Normal Working Hours," The hours between 8AM and 5PM PST(pacific Standard Time) or PDT(pacific
Daylight Time), whichever is applicable, on the days Monday through Friday, excluding regularly scheduled
holidays of Licensor.
1.10 "Releases," New versions of the Licensed Program, which new versions may include both Error
Corrections and Enhancements.
1.11 "Support Agreement Term," A full calendar year, commencing on January I and ending on December 31,
during which certain support and services are provided subject to the terms and conditions set forth in Section9.0,
Software Support.
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1.12 "City & County." Separate implementations ofthe Licensed Program are to take place on the computer
named above for the City of Aspen, Colorado and Pitkin County, Colorado. The Licensee accepts sole and
complete responsibility under this Agreement for these implementations, both singly and jointly, regardless of
whether the indi\~dual components or modules of the t-icensed Program are being utilized individually or join11y
by the Licensee and Pitkin County. '.
Section 2
GRANT OF LICENSE
2.1 Scope of License, Subject to compliance by Licensee with the terms hereof, Licensor hereby grants to
Licensee, in perpetuity uuless terminated as provided herein, a personal, non-exclusive, nontransferable license
(without the right of sublicense), to:
a. Install, use, and execute the Licensed Program on computers owned or leased and used by
Licensee at its facilities in the United States in support of the internal business activities of Licensee;
b. Use the Licensed Documentation ouly in conjunction with installation and use of the Licensed
Program; and
c. Prepare Maintenance Modifications or Enhancements to the source code of the Licensed Program,
provided source code is offered and included in this Agreement, and use such works oulyas
authorized in Sections 2. I(a) and 2.1(b).
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