HomeMy WebLinkAboutresolution.council.006-97
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RESOLUTION NO. &0
Series of 1997
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, AUTHORIZING EXECUTION OF A CONTRACT WITH EDEN
SYSTEMS, INC. FOR PURCHASE OF COMPUTER SOFTWARE FOR USE BY
THE COMMUNITY DEVELOPMENT DEPARTMENT.
WHEREAS, the City Council has previously approved a budget for the
purchase of new computer software for use by the Community Development
Department; and,
WHEREAS, the Community Development Department has conducted an
open request for proposal process to identify responsible providers of suitable
software; and,
WHEREAS, the Community Development Department has identified the
products and services provided by Eden Systems, Inc. as most suitable for the
intended uses of the department and has negotiated an acceptable contract with
Eden Systems, Inc. for the acquisition of such products and services;
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NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE
CITY OF ASPEN, COLORADO:
The City Manager of the City of Aspen is authorized to execute a contract
with Eden Systems, Inc. , in the form attached hereto as Exhibit A, for the
acquisition of new computer software.
INTRODUCED, READ ~OPTED by the City Council of the City of
Aspen on the 02::;- day of fLJ.. (J ,1997.
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John S. Bennett, Mayor
I, Kathryn s. Koch, duly appoinled and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Cour:lcil of the City of Aspen , Colorado at a meeting held on. the day
hereinabove stated.
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Kathryn S. Koch, City Clerk
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Eden Systems. Incorporated
Software License and Use Agreement
THIS AGREEMENT, made and entered into by and between Eden Systems, Incorporated (hereinafter "Licensor"),
a corporation duly authorized and existing under the laws of the State of Washington and having its principal offices
at 5015 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 81611
hereinafter referred to as "Licensee".
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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 defmed. Both parties agree they are able to comply with and
will satisfy the terms and conditions as set forth in this Agreement. Both parties, intending to be legally bound,
agree to the following:
Section I
DEFINITIONS
The definition of terms set forth in this section shall apply when such terms are used in this Agreement, its exhibits,
and any amendments including:
1.1 "Licensed Program. tI 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. The system is licensed for use on the following:
Computer Processor/Model:
Concurrent Users:
Sun Spare 20 Model 50
Sixteen (\ 6)
1.2 "Licensed Documentation." The sysIem 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 "Erlror." 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.
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
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routine that, when observed in the regular operation of the Licensed Program, eliminates 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 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 SAM and 5PM PST(Pacific Standard Time) or PDT(Pacific
Daylight Time), whichever is applicable, on the days Monday through Friday, excluding regularly scheduled
ho lidays of Licensor.
1.10 ','Releases. tI 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 Section 9,
Software Support.
1.12 "City & County." A single implementation of the Licensed Program is to take place on the computer named
above for the City of Aspen, Colorado and Pitkin County, Colorado. The Licensee accepts sole and complele
responsibility under this Agreement for this implementation, regardless of whether the individual components or
modules of the Licensed Program are being utilized individually or jointly by the Licensee and/or 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 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 oflhe 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.I(a) and 2.I(b).
2.2 Delivery of Materials. The Licensed Program and associated services will be delivered using the attached
Exhibit C - Guideline for Implementation, as a guideline and shall not be held by either the Licensor or the Licensee
as a guaranteed date of delivery or implementation schedule and the submission of such Exhibit C shall not be used
as the basis for any claim of breach under this Agreement
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2.3 Necessity for third-party Software. Licensee acknowledges that in order to be executed, 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.
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2.7 Licensee Notification and Delivery of Materials. Licensee shall notif'y and deliver to Licensor one copy of
any Maintenance and Enhancement Modifications developed by Licensee within a reasonablt 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 Documentation, including the media 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 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 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 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, 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 perioCl
of five (5) Support Agreement Terms with the condition that the terms of the Flagship Support Program are in
effect as described in Exhibit A.
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
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Licensee. It is the responsibility of the Licensee to notifY Licensor of that limitation npon execution of this
Agreemeut.
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4.4 Other Costs. Other costs, including but not limited to air/train/taxi fare, lodging, car rental, parking, freight
costs and reproduction charges are the responsibility of the Licensee. Licensee may iucur 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 isexc1usive 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
5.1 Acknowledgment..,r 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 expenditure of
considerable time and money by Licensor. Licensee shall treat the Licensed Programs and Licensed Documentation
in c;:ol1fidence, 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.
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5.2 Sec!,re 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 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 nol 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 reproductious 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 informalion 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.
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 equitable 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.
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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
hy 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 6
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 henefit 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 hy Licensee or hy 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 ohsolescence of the Licensed Program nor for lack of conformity occurring from Licensee's failure to update the
Licensed Program with distrihuted Enhancements, Maintenance Modifications, or Error Corrections.
6.3 Exdusive 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 (I) modification of the Licensed
Program by Licensee, (2) failure of Licensee to notifY Licensor ofthe 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 MATERIALS FURNISHED OR
PROVIDED TO LICENSEE HEREUNDER. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FIlNESS FOR A PARTICULAR PURPOSE WITH RESPECT
TO SAID MATERIALS OR THE USE THEREOF.
6.5 Limitation of Liability. EXCEPT WITH RESPECT TO (A)LIABILITY ARISING FROM CLAIMS OF
INFRINGEMENT OF THIRD-PARTY RIGHTS IN THE UNITED STATES IN COPYRIGHT, TRADE SECRET,
OR PATENT, OR (B)LOSSES DUE TO INJURY AND/OR DAMAGE TO TANGIBLE PROPERTY
RESULTING FROM AN INTENTIONAL ACT OR NEGLIGENCE OF EITHER PARTY, ITS EMPLOYEES OR
AGENTS; NEITHER PARTY SHALL BE LIABLE FOR DIRECT DAMAGES ARISING OUT OF THE
PROVISIONS OF THIS 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 CLAIM, DEMAND, OR ACTION ARISING OUT OF OR
RELATING TO ITS PERFORMANCE OR LACK THEREOF UNDER THIS 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.
6.6 Licensee Indemnification. To the extent permitted hy law, Licensee shall and does hereby agree to indemnifY,
hold hannless, and save Licensor from liability against any claim, demand, loss, or action (l)resulting from
Licensee's use or modification of the Licensed Program and Licensed Documentation and (2)alleging that any
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Maintenance Modifications made by Licensee infringe 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 or settlement of such actions and (2)giving Licensee prompt written notice of any
claim, demand, or action for which indemnification is sought.
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6.7 Licensor Indemnification. Licensor shall and does hereby agree to indemnify, 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 infringe 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, Of. 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 TERMINATION
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 30 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 30-day
period. Such notice shall set forth the basis of the termination.
7.3 A.ctionsUpon 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.
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Section 8
MISCELLANEOUS
8.1 Entire Agreement. The provisions herein constitute the entire agreement between the parties with respect to
the subj~ct 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 Agreemenl 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.
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 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.
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 of this Agreement will remain in full force and effect.
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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 offailure.
Licensor shall notifY Licensee when such retesting can begin and the Licensee shall complete Acceptance Testing
within a period often (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 ifthe Licensor fails to remedy the defect within sixty (60) days of receipt of said notification, the
Licensee has the righI, at its option, to terminate the Agreement 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 liquidation 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 shall
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 ofthe requirements of
Licensee's municipal code, Section 13-98, pertaining to non-discrimination in employment.
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.
8.13 Independent Contractor. It is expressly acknowledged and understood by the parties that nothing contained
in this Agreement shall result in, or be construed as establishing an employment relationship. Licensor shall be, and
shall perform as an independent contractor who agrees to use best efforts to provide the products and services
described herein. No agent, employee, or servant of Licensor shall be, or shall be deemed to be, the employee,
agent or servant of the Licensee.
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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 servants of the Licensor. Licensor shall be solely and entirely responsible for
its acts and for the acts of Licensor's agents, employees, servants and subcontractors during the performance ofthis
Agreement. Licensor shall indemnify Licensee to the extent described in this Agreement and shall assume all
liability and loss in conneclion 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 and/or Licensor's employees engaged in the performance of the services agreed to herein.
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Section 9
SOFTWARE SUPPORT
9.1 Scope of Service. Licensor shall render support and services between the hours of SAM and 5PM, PST(pacific
Standard Time) or PDT(Pacific Daylight Time), whichever is in effect, for the following:
~ a. Telephone support - Calls related to operation of the Licensed Program, reporting of a potential error
condition or abnormal termination of a program, or request for mintir assistance related to the Licensed
Program;
b. Support Enhancements - Selected Enhancements, the nature and type of which shall be determined
solely by the Licensor. Such provision shall not preclude Licensor from providing other Enhancements of
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.
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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 column headed Published License Fee (Support Basis), on
Exhibit "A".
Support rates will be protected, under lhe provisions in Exhibit A, Flagship Support Program, for a period of five
(5) Support Agreement Terms from date of first execution.
Licensor reserves the right, after this initial 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% ofthe 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.
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 air/train/taxi 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 ofthe Licensor.
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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.
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 the 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 three (3) copies ofthe 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 documents of assignment or acknowledgment, 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 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 IN THIS
AGREEMENT, EDEN 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. Support may be terminated as follows:
a. Upon the termination of the License Agreement; or
b. Upon the expiration 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 WIlNESS WHEREOF, the parties have caused this Agreement to be executed as set forth below.
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Eden Systems, Ine .
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Signature:~ ----::, lty of Aspen, Colorado
Title: Vice By: 7(a...J'1 L. 0'_ i
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Exhibit A
INFO RUM DELIVERABLES
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Products (Fixed Costs):
Parcel Manager, Permits & Inspections (26)
Services (Estimated Costs):
Enhancement - GL Import/Export
Enhancement - GL Account Input/Validation
Travel, Expenses
Data file conversion services
RxLaser and Forms Modifications
$13520.00
$2400.00
$800.00
$10000.00
$5200.00
$3000.00
.
Equipment, Third-Party Software
(Estimated Costs):
Informix (See Exhibit B)
ODBC (See Exhibit B)
ArcView 3.0 (10 users)
Other Products/Charges (Fixed
Costs):
Installation/Setup [5]
$18071.00
$1600.00
$9950.00
$34450.00
$2400.00
$800.00
$10000.1>0
$52011.00
$3000.00
$18071.00
$1600.00
$9950.00
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$2600.00 $2600.00
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LICENSE.SAM
Page II
Exhibit A
BILLlNG/PAYMENT SCHEDULE
Licensee shall pay Licensor according to the following schedule of payments and shall not exceed the am6unts
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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Parcel Manager, Permits & Inspections
Training
Enhancement - GL ImportlExport-Estimated
Enhancement - GL Account InputlValidation-Estimated
Travel, Expenses-Estimated
Data file conversion services-Estimated
RxLaser and Forms Modifications-Estimated
Informix (See Exhibit B)-Estimated
ODBC (See Exhibit B)-Estimated
ArcView 3.0 -Estimated
Installation/Setup
$8372.00
$13520.00
$12558.00
$2400.00
~800.00
$10000.00
$5200.00
$3000.00
$18071.00
$1600.00
$9950.00
$2600.00
LICENSE.SAM
$20930.00
$13520.00
$2400.00
$800.00
$10000.00
$5200.00
$3000.00
$18071.00
$1600.00
$9950.00
$2600.00
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Page 12
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Exhibit A
InForumF'agship Support Program (Optional)
Scope of Service. Licensor shall render accelerated support and services for components identified with a dollar
amount in lhe column headed "Annual Support $" on Exhibit A, provided that Licensee licenses, and maintains
under uninterrupted support from Licensor, the active and continual use ofthe 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 InForum".g,{,~ Support Program represents significant advantages that will
save lime, 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 tile line' Support - Priority support without exceptions for InForum Flagsllip users;
Long-term Support Rates - Unconditional, guaranteed support rates as per Section 9.2;
License-free GUI Upgrade - License-free GUl (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 Flagsllip 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 Eden Systems and the InForum solution whenever possible.
Acceptance:
[Licensor]
Eden Systems, Inc.
By: Dennis L alts
Signature:
Title: Vice President
Date: / / z,3' A 7
[Licensee]
City of Aspen, Colorado
By: t. av;f'1, R. ~( f
Signature: f~
Title: -Ass+- etfZ, ~-e-
Date: r/3" ('1+
LICENSE. SAM
Page 13
Exhibit B
Database Tools, Third-Party Products
-
The following infonnation is presented for infonnational purposes only and is not represented as a commitment on
the part of the Licensor to guarantee pricing or availability for other third-party vendors. .
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1nformix V5 Class D (Sunsparc 20/50) 16 users
1nfonnix OnLine Runtime 16
Infonnix OnLine Development 1
Infonnix 4GL Runtime 16
Infonnix 4GL Development 1
Infonnix 4GL RDS Development 1
Infonnix 4GL-ID Development 1 user
Infonnix Star Runtime 16
Infonnix Net 16
Subtotallnfonnix Products
15% Discount
Total 1nfonnix Products
Connectivity Products - 16 users
Intersolv ODBC Driver for Infonnix
Subtotal ODBC Driver for Infonnix
1nformix Support Costs
Assurance OnLine Runtime 16
OpenLine OnLine Development 1
Assurance 4GL Runtime 16
OpenLine 4GL Development I
OpenLine 4GL RDS Development I
OpenLine 4GL-ID Development 1
Assurance Star Runtime 16
Assurance I NET 16
Subtotal Infonnix Support
-1-
-1-
-1-
-1-
-1-
-1-
-1-
-16-
$6480.00
$3960.00
$1870.00
$2570.00
$2570.00
$590.00
$1620.00
$100.00
$6480.00
$3960.00
$1870.00
$2570.00
$2570.00
$590.00
$1620.00
r
$1600.00
$21260.00
-$3189.00
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$1600.00
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$780.00 $780.00
$715.00 $715.00
$220.00 $220.00
$460.00 $460.00
$460.00 $460.00
$220.00 $220.00
$200.00 $200.00
$10.00 $160.00
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-1-
-1-
-1-
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-1-
-1-
-16-
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Exhibit C
Guideline for Implementation
Project Schedule and Training Plan
The following schedule for installation and training tasks is included here as a guideline only and
is intended merely to describe associated tasks and services. This is not a guarantee to provide
any service or complete any task within the timeline suggested. Licensor and Licensee agree that
the delivery of such tasks and services are wholly dependent on, but not limited to the
availability of adequate hardware, network configuration and client (PC desktop) connectivity
, software, such items being the complete responsibility of Licensee. This schedule also depends
directly on the availability of Licensee's staff to coordinate and participate in the following tasks.
Pre-installation tasks (prior to first trip):
. Complete the database sizing questionnaire (already transmitted to Licensee)
. Provide for adequate hardware including memory and disk space.
· Complete conversion/data source questionnaire.
First Installation Tri contract + 2 weeks endin delive of Informix :
. Install Informix and InFonun. Train on InForum security set-up.
.
Begin conversion Tasks (contract + 3 weeks}
· Convert parcels, permits and associated data
. Consult on Arc View hot-link to InForum
Second Installation Trip (contract + 7 weeks}
. Train on parcel and permit configurations
. Train on parcel maintenance programs
. Evaluate first cut of converted data
GL set-up and custom modifications (contract + 7 weeks}
. Program GL modifications and train on GL set-up for permit fees
Third Installation Trip (contract + 10 weeks}
. Review completed conversion and begin parallel operations
. Train on parcel and permit operations
Fourth Training Trip (contract + 12 weeks}
· Live operations begin
. Remaining training for operations or maintenance, to be determined by Licensee
.
LICENSE.SAM
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