ARTICLE I.AGREEMENT, TERM AND DEFINITIONS



LARIMER COUNTY, COLORADOPROFESSIONAL SERVICE AND SOFTWARE LICENSE AGREEMENTP20-28 Enterprise Asset Management SystemTHIS AGREEMENT (“Agreement”) is made effective as of the ___ day of __________, 202__, (“Effective Date”) by and between the Board of County Commissioners of Larimer County, Colorado, located at 200 W. Oak, Fort Collins, Colorado 80521, hereinafter referred to as the "COUNTY", and ___________________________, an ______ authorized to do business in Colorado (the “VENDOR”).WHEREAS, the COUNTY wishes to purchase _____________________(the “System”) as detailed in its Request for Proposal No. ______ (the “RFP”); andWHEREAS, VENDOR submitted a formal response to the COUNTY’s RFP and, in accordance with the COUNTY’s purchasing procedure, VENDOR was selected to provide the System; andWHEREAS, VENDOR has the ability to assist the COUNTY through VENDOR’s professional expertise, knowledge, and experience, and is ready, willing and able to provide such services, subject to the conditions hereinafter set forth; andWHEREAS, VENDOR desires to provide the required software and professional services necessary to implement the System for the COUNTY pursuant to this Agreement.NOW, THEREFORE, in consideration of the premises and other good and valuable consideration received and to be received, COUNTY and VENDOR agree as follows:ARTICLE I.AGREEMENT, TERM AND DEFINITIONS1.1 Agreement and Term. The Parties agree that the terms and conditions of this Agreement apply to the license of computer software programs and the provision of services to the COUNTY by VENDOR. The term of this Agreement commences on the Effective Date and the Agreement shall continue in effect until terminated by either party as set forth in this Agreement; provided, however, that the license granted to COUNTY by VENDOR for the Software is perpetual unless terminated as provided for in this Agreement.Agreement Documents. The following documents are attached hereto and incorporated into this Agreement by this reference:Exhibit TitleAttachment ReferenceScope of WorkExhibit ARFPExhibit BVENDORs Response to RFPExhibit CPricingExhibit D[Maintenance Agreement, if applicable][3rd Party Software License(s), if applicable]Related Agreement. As part of implementing the System, COUNTY is engaging VENDOR for maintenance of the System [as set forth in Exhibit ___ OR pursuant to a separate Maintenance Agreement (“Maintenance Agreement”). The Maintenance Agreement will be executed contemporaneously with this Agreement.] Definitions. For all purposes of this Agreement, unless the context specifically indicates otherwise, the terms defined in this section shall be applicable:Confidential Information – Copyrights, Trade Secrets, Technical Information, Technology, and any and all other confidential and/or proprietary information provided by one Person (“Discloser”) to another Person (“Recipient”) pursuant to this Agreement or otherwise, relating to, among other items, the research, development, products, processes, business plans, customers, finances, suppliers, and personnel data of or related to the business of Discloser, including, without limitation, the Software and all Documentation. Confidential Information does not include any information: (1) Recipient knew before Discloser provided it; (2) which has become publicly known through no wrongful act of Recipient; (3) which Recipient developed independently, as evidenced by appropriate documentation; or, (4) of which Recipient becomes aware from any third Person not bound by non-disclosure obligations to Discloser and with the lawful right to disclose such information to Recipient. Notwithstanding the foregoing, specific information will not be deemed to be within the foregoing exceptions merely because it is contained within more general information otherwise subject to such exceptions. Nothing in this section shall apply to information or records that is subject to disclosure pursuant to law, including under the Colorado Open Records Act.Copyrights – copyrighted and copyrightable materials, whether or not registered, published, or containing a copyright notice, in any and all media, and further including, without limitation, any and all moral rights and corresponding rights under international agreements and conventions, all Derivatives thereof, and any and all applications for registrations, registrations, and/or renewals of any of the foregoing.Deliverables – those components, milestones, and/or materials, including, without limitation, the Software, Documentation, Maintenance Modifications, and Enhancements to be completed by one Party and delivered or otherwise provided to the other Party in accordance with the terms of this Agreement and/or an effective Maintenance Agreement. Deliverables can mean either Deliverables required from VENDOR (“VENDOR Deliverables”) or Deliverables required from COUNTY (“COUNTY Deliverables”).Derivatives – any and all adaptations, enhancements, improvements, modifications, revisions, or translations, whether to Intellectual Property or otherwise.Documentation – manuals, user guides, and other documentary materials for use with the Deliverables, including, without limitation, all Derivatives thereof.Enhancements – changes or additions, other than Maintenance Modifications, to Software and related Documentation, including, without limitation, all new releases, that improve functions, add new functions, or significantly improve performance by changes in system design or coding.Error – (1) any error or defect resulting from an incorrect functioning of Software caused by the Software’s failure to meet a Functional Specification therefore; or, (2) any error or defect resulting from an incorrect or incomplete statement in Documentation caused by the failure of the Software and/or the Documentation to meet a Functional Specification therefore.Functional Specifications – the design and/or performance criteria for and qualities of the Software described as Functional Specifications in the Scope of Work. Intellectual Property – (1) Trade Secrets, (2) Copyrights, (3) Derivatives, (4) Documentation, (5) Patents, (6) Software, (7) Technical Information, (8) Technology, and (9) any and all proprietary rights relating to any of the foregoing.COUNTY Data – all data of COUNTY, whether proprietary or non-proprietary to COUNTY, converted, created or entered in to the System.COUNTY Materials – all COUNTY Data and all Derivatives thereof.Maintenance Modification – any modification or revision to Software or Documentation that corrects Errors, supports new releases of the operating systems with which the Software is designed to operate, supports new input/output (I/O) devices, or provides other incidental updates and corrections.Material Breach – failure by a Party to perform any requirement, duty, or obligation upon it as provided for in this Agreement, other than as excepted pursuant to the provisions of §15.4 (Excusable Delays) and §15.6 (Appropriations).Patents – all patentable materials, letters patent, and utility models, including, without limitation, all reissues, continuations, continuations-in-part, renewals, Derivatives, and extensions of any of the foregoing, and all applications therefor (and patents which may issue on all such applications).Person – an individual, partnership, corporation, association, joint stock company, limited liability company, trust, joint venture, unincorporated organization, or any governmental agency or authority.Scope of Work – the written descriptions and specifications for the System set forth in the Agreement Documents, including, without limitation, the Deliverables and Functional Specifications, and all installation terms, milestones, delivery, and acceptance schedules.Software – includes, as applicable, all VENDOR software and all Third Party Software supplied by VENDOR pursuant to this Agreement. Software shall include any Maintenance Modification or Enhancement thereto created by VENDOR from time to time during the Warranty Period of this Agreement and/or thereafter during the term of any effective Maintenance Agreement. System – the Software system developed by VENDOR in accordance with the Scope of Services for use by COUNTY pursuant to the terms and conditions of this Agreement.Technical Information – know-how, data, and other technical information including, without limitation: (1) engineering documentation, such as development records, production software information, algorithms, flow charts, design information, drawings, specifications, and data sheets; (2) manufacturing documentation such as manufacturing drawings, instructions, specifications, procedures, methods, standards documentation, tooling and fixture drawings, process specifications and instructions; and, (3) quality and reliability documentation such as quality plans, specifications, instructions, procedures, test plans, test records and regulatory documentation; and further including any and all Intellectual Property therein or relating or referring thereto.Technology – know-how, show-how, procedures, systems, processes, Trade Secrets, inventions (whether or not patentable and whether or not reduced to practice), algorithms, formulae, research and development data, manufacturing, development, and production techniques, and all other proprietary information relating thereto, and further including any and all Intellectual Property therein or relating or referring thereto.Test Validation Criteria – the acceptance criteria for the VENDOR Deliverables, including, without limitation, the Software, set forth in the Scope of Services.Third Party Software – software utilized in tandem with the Software, and necessary to enable the Software to perform the Functional Specifications, supplied by VENDOR with the Software. [or by COUNTY independently of VENDOR].Trade Secrets – shall have the meaning set forth in applicable statutory law, if any, and, if not, as defined by applicable common law; provided, however, that, where both statutory and common law may be applicable, the broadest possible definition shall apply.Trademarks – trademarks, service marks, logos, trade names, and/or domain names including, without limitation, any and all common law and/or statutory rights therein and any and all applications to register and/or registrations therefore.Warranty Period – the ninety (90) day period commencing on the Software Acceptance Date.ARTICLE II – SCOPE OF WORKVENDOR shall serve as the COUNTY's consultant and shall provide as a minimum all of the services described in the Scope of Work and those additional exhibits set forth in the Agreement Documents. VENDOR shall provide the COUNTY by way of a perpetual license for use the VENDOR’s (name of system), including (name of any supplemental/third party software that will be included) as detailed in Scope of Work and the Agreement Documents.COUNTY may license additional software from VENDOR by execution of a subsequent license agreement. Any change to the Scope of Work shall only be effective if agreed to in writing and signed by both parties. DELIVERY AND ACCEPTANCE.Delivery. Each Party shall timely perform delivery of its required Deliverables in accordance with the Scope of Work, including the delivery schedule specified therein. Testing. Testing of VENDOR Deliverables shall be completed by COUNTY in accordance with the Test Validation Criteria set forth in the Scope of Work within ____________ days following initial delivery to COUNTY.Initial Acceptance. Within _______ days following initial delivery to COUNTY Test environment, COUNTY shall either: (i) accept the VENDOR Deliverables in writing; or, (ii) reject the VENDOR Deliverables and provide VENDOR with a statement of Errors resulting in operation not in conformance with the Test Validation Criteria. Failure by COUNTY to provide the rejection and statement of Errors within the ______ day period provided herein shall be deemed to be acceptance by COUNTY of the VENDOR Deliverables. VENDOR will correct any Error and redeliver the affected Deliverables to COUNTY within ______ days following receipt of the statement of Errors. COUNTY shall, within ______ days following such redelivery, retest and accept or reject the redelivered VENDOR Deliverables in accordance with the procedures set forth herein. Installation. Within thirty ____ days following acceptance of the VENDOR Deliverables, VENDOR shall install the System at the COUNTY’s facilities for final acceptance testing.Final Acceptance (also called Software Acceptance Date). Within _____ days following completion of installation, which is to be completed no later than _______, 201__, COUNTY shall either: (i) accept the System in writing; or, (ii) reject the System and provide VENDOR with a statement of Errors resulting in operation not in conformance with the Test Validation Criteria. VENDOR shall correct any Error and redeliver the System to COUNTY within _______ days following receipt of the statement of Errors. COUNTY shall, within ______ days following such redelivery, accept or reject the redelivered System in accordance with the procedures set forth herein. COUNTY shall only be deemed to have finally accepted the System upon written confirmation of such acceptance. ARTICLE III – FUNCTIONAL SPECIFICATIONS AND TRAININGFunctional Specifications. VENDOR shall provide guidance and assistance to COUNTY and COUNTY shall complete all associated tasks requested by VENDOR for the purpose of defining and approving all Functional Specifications for each of the items of Software licensed by COUNTY from VENDOR hereunder.Customized Software. COUNTY understands that such Functional Specifications shall be defined in accordance with VENDOR standard applications and that any application and/or communication and/or functions not currently supported by VENDOR shall be considered "customized" and, as such, may incur additional costs and delivery schedules beyond those stated and agreed to by VENDOR.Training. VENDOR shall provide COUNTY with training as outlined in the Scope of Work, at COUNTY’s facilities at which the Software is installed. COUNTY may request additional training time and/or additional personnel to be trained, provided that any such additional training shall be chargeable to COUNTY at VENDOR’s then current fee for the requested training and agreed to in advance by the parties.[If applicable, add language regarding any Interface Development and Development Services here]ARTICLE IV – PRICE AND PAYMENTPrice. The charges, prices, fees, and discounts for the perpetual license of the Software and all VENDOR services set forth in the Scope of Work are detailed in Exhibit D and summarized as follows:The perpetual license of Software shall not exceed $______________ (“License Fee”);The maximum total cost to COUNTY under this Agreement for all of VENDOR’s services, including all travel costs, shall not exceed $______________ (“Service Fee”). The total maximum cost to COUNTY under this Agreement is $ (the sum of the License Fee and Service Fee). In no event shall COUNTY be liable to pay any money in excess of this total maximum cost, unless COUNTY agrees otherwise in writing. Payment of License Fee. COUNTY shall pay 15% ($_________) of the License Fee to VENDOR upon execution of this Agreement. COUNTY shall pay an additional 15% ($______) to VENDOR when a project scheduled is agreed to by both parties. The remaining 70% ($______) is due on the final Software Acceptance Date as described in §2.5.5 above.Payment of Service Fee. VENDOR shall prepare and submit correct invoices for payment to the COUNTY on a monthly basis for that portion of the Service Fee that is incurred during the prior month. Payment will be made to VENDOR within thirty (30) days, or within a mutually agreed upon time, after COUNTY has received complete invoices from VENDOR. The COUNTY reserves the right to require such additional documentation prior to payment, including monthly activity reports detailing the VENDOR’s activities and services rendered, as the COUNTY deems appropriate to support the payments to VENDOR.Failure of Payment. Subject to this Article IV and §12.4 below, failure of COUNTY to timely pay properly presented invoices shall constitute a default of this Agreement. ARTICLE V – SOFTWARE LICENSEBackground. VENDOR [and/or its suppliers] has [have] designed, developed, and made available proprietary computer Software containing Trade Secrets of VENDOR [and/or its suppliers]. Use of this Software is strictly governed by the terms of this Agreement. No title or ownership in the Software is transferred to COUNTY. The License granted hereby is only for COUNTY’s use for its purposes as described in the Agreement Documents. COUNTY shall not copy or in any way duplicate the Software, except for necessary backup and archival purposes. In connection with any such permitted copy, COUNTY shall reproduce and incorporate all Trade Secret and/or Copyright notices, and the same shall be subject to all of the terms and conditions of this Agreement. Perpetual Software License. For each item of Software received by COUNTY, VENDOR grants COUNTY and COUNTY has a nontransferable, nonexclusive, irrevocable, fully paid, royalty-free, perpetual license for use of the Software (machine readable version) and Documentation therefore in accordance with the terms and conditions of this Agreement. Title to the Software remains in VENDOR. VENDOR shall be the sole and exclusive owner of all rights to Patents, Copyrights, Trademarks, Trade Secrets, and all other Intellectual Property rights in the Software and in all Maintenance Modifications and Enhancements thereto. Such use shall be limited to COUNTY for its purposes as described in the Agreement Documents. Third Party Software. In consideration of the payment of the Fees herein, VENDOR shall procure for COUNTY’S perpetual, royalty free use, all Third Party Software on the same terms as provided herein. COUNTY shall execute all documents reasonably requested by VENDOR with respect to all Third Party Software licensed or sublicensed by VENDOR to COUNTY hereunder, or necessary to the performance of the Software hereunder in accordance with the Functional Specifications, subject to all such documents having only terms consistent with the obligations in this Agreement and resulting in no increased costs to COUNTY. Software, Documentation, and all copies thereof may not be assigned, conveyed, relicensed, sublicensed, published, disclosed, displayed, or otherwise transferred by COUNTY for the benefit of a third Person. COUNTY shall not permit any other Person (exclusive of COUNTY’s employees and necessary contractors and/or agents acting in the proper scope of their services to COUNTY, and any other intended end users provided for in the Agreement Documents) to use the Software, Documentation, or any copy thereof. COUNTY shall not reverse engineer, decompile, or disassemble, in whole or in part, any of the Software and/or any Documentation. COUNTY is entitled to all Enhancements and/or Maintenance Modifications to the Software and Documentation as are expressly provided for in this Agreement or in any effective Maintenance Agreement between VENDOR and COUNTY. ARTICLE VI – WARRANTY, EXCLUSIONS, AND DISCLAIMERSoftware Warranty. VENDOR warrants that the Software delivered hereunder shall conform to the Functional Specifications set forth in the Scope of Work and will be free of Errors during the Warranty Period. VENDOR shall remedy, at no cost to COUNTY, any such Error reported to VENDOR during the Warranty Period. Notwithstanding the foregoing or any other term or provision of this Agreement, with respect to Third Party Software provided by VENDOR hereunder, VENDOR makes no warranties, but shall, to the extent legally permitted, pass through to COUNTY all warranties provided by the original licensor/manufacturer.Software Warranty Exclusions. The foregoing warranties do not apply to any of the following:Damage arising from any cause beyond VENDOR's reasonable control, including, without limitation, damage due to the improper operation or use of Software by COUNTY, abuse or misuse of Software other than as designed or intended, malfunctions caused by alteration or tampering, or any reason specified in §15.4 (Excusable Delays) of this Agreement.Damage resulting from movement of Software after its initial installation.Malfunction or breakdown of Software due to attachment to, or addition or use of, software not supplied by VENDOR with the Software, or as a result of attachment of the Software to hardware or software by anyone other than VENDOR, or as a result of hardware associated problems.Damage, malfunction, or breakdown of Software due to improper operating environment, including, without limitation, temperature, humidity, dust, or static charge.Destruction or damage, in whole or in part, of Software by any Person other than VENDOR.VENDOR warrants it will provide, at its sole cost, sufficient employees, and all tools, equipment and other materials and resources necessary to meet its obligations under the Agreement Documents.ARTICLE VII - RESTRICTIONS ON DISCLOSURE OF CONFIDENTIAL ITEMSProtection. Recipient shall use commercially reasonable care, but in no event less than the same degree of care it uses to protect its own most confidential and proprietary information, to prevent the unauthorized use, disclosure, publication, or dissemination of Discloser’s Confidential Information. Recipient shall provide Discloser’s Confidential Information to its employees and necessary contractors only on a “need to know” basis, and always subject to the terms of this Agreement. Recipient agrees to accept and use Discloser’s Confidential Information solely in connection with Recipient’s participation in, and solely with respect to, this Agreement. Recipient shall inform its employees and necessary contractors of the obligations contained within this §7.1, and shall take such steps as may be reasonably requested by Discloser to prevent unauthorized disclosure, copying, or use of Discloser’s Confidential Information. Recipient acknowledges that, in the event of a breach by Recipient of its obligations under this §7.1, in addition to any other right or remedy available to Discloser, at law or in equity, Discloser will suffer irreparable injury, and shall be entitled to preliminary and final injunctive relief (without bond except as otherwise required by applicable law) in order to prevent any further or other breach of this §7.1 or any unauthorized use of Discloser’s Confidential Information. Recipient shall notify Discloser immediately upon discovery of any prohibited use or disclosure of any of Discloser’s Confidential Information, or any other breach of the requirements of this §7.1 by Recipient (including, without limitation, by any contractors), and shall fully cooperate with Discloser to assist Discloser in regaining possession of its Confidential Information and to prevent further unauthorized use or disclosure of the same.Limited Disclosure. Recipient may disclose Confidential Information of Discloser if and to the extent required by law or any judicial or administrative governmental request, requirement, or order, provided that Recipient shall take reasonable steps to provide Discloser sufficient prior notice in order to enable Discloser to contest such request, requirement, or order. Recipient shall, except as otherwise expressly provided by the terms of this Agreement, return all tangible Discloser Confidential Information, including, without limitation, all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser immediately upon Discloser’s request.Ownership. All Discloser Confidential Information, including, without limitation, any and all adaptations, enhancements, improvements, modifications, revisions, or translations thereof created by Discloser or Recipient, shall be and remain the property of Discloser, and no license or other rights to such Confidential Information is granted or implied hereby. Except as otherwise expressly provided in this Agreement, all Discloser Confidential Information is provided “AS IS” and without any warranty, express, implied, or otherwise, regarding its accuracy or performance.Survival. The obligation of Recipient to maintain the confidentiality of Discloser’s Confidential Information shall survive the expiration or termination of this Agreement indefinitely, unless and until: (i) such Confidential Information shall cease to be Confidential Information; or, (ii) otherwise agreed to in writing by Discloser. ARTICLE VIII – INTELLECTUAL PROPERTY RIGHTSWarranty. VENDOR represents and warrants that (i) at the time of delivery to the COUNTY, no element of the System and/or methodology provided under this Agreement is the subject of any litigation, and (ii) VENDOR has all right, title, ownership interest, and/or marketing rights necessary to provide the System and/or methodology to the COUNTY and that the Software License provided herein and COUNTY’s use of the Software pursuant to such license does not and shall not directly or indirectly violate or infringe upon any copyright, patent, trade secret, or other proprietary or intellectual property right of any third party. The foregoing warranty of VENDOR shall be ineffective where any infringement is based on: (i) the COUNTY’s (or any Person other than VENDOR on behalf of COUNTY), modification, alteration, or other changing of the Software, if such claim would have been avoided but for such changes; and/or (ii) the COUNTY’s combination, operation, or use of the Software with any Intellectual Property other than VENDOR’S Intellectual Property, if such claim would have been avoided but for such combination, operation, or use; and/or, (iii) any Derivative of any VENDOR Intellectual Property created for or at the direction of COUNTY by any Person other than VENDOR. VENDOR shall have sole control over the selection of counsel and the defense of any legal proceeding or other claim described herein and any settlement thereof, and COUNTY shall provide VENDOR with all reasonable assistance in the defense of the same. Remedy. VENDOR shall indemnify and hold the COUNTY and its officials, employees, and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs, and expenses (including reasonable legal fees) resulting from or arising out of any litigation, any breach or claimed breach of the warranties in §8.1 above, or which is based on a claim of an infringement and VENDOR shall defend and settle, at its sole expense, all suits or proceedings arising therefrom. The COUNTY shall inform VENDOR of any such suit or proceeding against the COUNTY and shall have the right to participate in the defense of any such suit or proceeding at its expense and through counsel of its choosing. In the event an injunction is sought or obtained against use of the System and/or methodology, VENDOR shall promptly, at its sole expense, either: (i) replace or modify the allegedly infringing Software to be non-infringing, provided that such modification does not adversely impact the functionality of the Software licensed to COUNTY hereunder in any material respect; or, (ii) obtain a license to enable COUNTY to continue to use the applicable Software as contemplated in this Agreement. In the event VENDOR fails to accomplish either of the foregoing alternatives within a commercially reasonable period, or if a permanent injunction shall be entered against the use of the Software by COUNTY, the license granted to COUNTY pursuant to this Agreement shall terminate on notice by either party to the other party, and, in such event, VENDOR shall refund to COUNTY the greater of the following: (i) 50% of the License Fee, or (ii) the License Fee less three percent (3%) thereof for each month, or part thereof, from the Software Acceptance Date to the effective date of termination, (iii) a commercially equivalent product and license to replace the service and software under this agreement.Notification. The Parties shall promptly notify each other of any claim described in this §8 which comes to their attention.Survival. The provisions of this §8 shall survive the expiration or other termination of this Agreement.ARTICLE IX – PROTECTION OF SOFTWAREVENDOR Ownership. As between VENDOR and COUNTY, VENDOR shall be the sole owner of all right, title, and interest in and to the Software, the Documentation, and any and all copies or Derivatives therein or thereof, created by either Party, exclusive only of the COUNTY Materials. COUNTY hereby irrevocably grants, transfers, and assigns to VENDOR, without reservation, all worldwide ownership rights, title, and interest, including, without limitation, any and all Patent, Copyright, Trademark, and/or Trade Secret rights, which COUNTY may have or acquire, by operation of law or otherwise, in and to any or all of the Software, the Documentation, and in and to any other Intellectual Property of VENDOR, along with the good will of the business appurtenant to the use of any of the same. COUNTY further hereby irrevocably transfers and assigns to VENDOR any and all moral rights COUNTY may have in and to such Software, the Documentation, and in and to any other Intellectual Property of VENDOR, and hereby forever waives and agrees never to assert any moral rights it may have therein, either prior to or following the termination of the license granted pursuant to this Agreement. COUNTY shall, at the request of VENDOR, execute any and all documentation necessary to formally transfer such rights to VENDOR.COUNTY Ownership. As between VENDOR and COUNTY, COUNTY shall be the sole owner of all right, title, and interest in and to all COUNTY Materials. VENDOR hereby irrevocably grants, transfers, and assigns to COUNTY, without reservation, all worldwide ownership rights, title, and interest, including, without limitation, any and all Intellectual Property rights, which VENDOR may have or acquire, by operation of law or otherwise, in and to any or all of the COUNTY Materials, along with the good will of the business appurtenant to the use of any of the same. VENDOR further hereby irrevocably transfers and assigns to COUNTY any and all moral rights VENDOR may have in such COUNTY Materials, and hereby forever waives and agrees never to assert any moral rights it may have therein, even after termination of the license granted pursuant to this Agreement. VENDOR shall, at the request of COUNTY, execute any and all documentation necessary to formally transfer such rights to COUNTY.Protection of VENDOR Intellectual Property. VENDOR shall have the right, but not the obligation, to file and prosecute all rights in and to any or all of its Intellectual Property, in its own name and at its own cost. COUNTY shall reasonably cooperate with VENDOR, at the request of VENDOR, in providing information, documentation, or other assistance to VENDOR reasonably necessary to enable VENDOR to file and prosecute any and all such rights. COUNTY has no right to file or prosecute, in its own name, on behalf of VENDOR, or otherwise, any right in or to any or all of the Intellectual Property of VENDOR without the prior consent of VENDOR in each instance, which consent may be withheld in the sole and absolute discretion of VENDOR.Enforcement of VENDOR Intellectual Property. VENDOR shall have the right to enforce its Intellectual Property, in its own name, against any and all third Persons whose activities: (i) violate, infringe, unfairly compete with, or are likely to violate, infringe, or unfairly compete with any or all of the Software licensed to COUNTY hereunder; or, (ii) cause, or are likely to cause, harm, injury, or damage to, COUNTY or VENDOR. COUNTY shall notify VENDOR of any such third Person violation, infringement, or unfair competition of which COUNTY acquires knowledge. VENDOR shall have the right to refrain from taking any such action, if, in the determination of VENDOR, such requested action cannot be undertaken without unreasonable expense or risk to VENDOR and/or to the Software, the Documentation, and/or any other Intellectual Property right of VENDOR. COUNTY shall not have the right to undertake any such action, whether at its own expense, in its own name, on behalf of VENDOR, or otherwise, without, in each instance, the prior consent of VENDOR, which consent may be withheld in the sole and absolute discretion of VENDOR.ARTICLE X - CHANGE ORDERS OR EXTENSIONSThe COUNTY may, from time to time, require changes in the Scope of Work. Such changes, including any increase or decrease in the amount of the VENDOR's compensation, must be mutually agreed upon in writing by the COUNTY and the VENDOR. The COUNTY may extend the time of completion of services to be performed by the VENDOR. Any such extension must be mutually agreed upon in writing by the COUNTY and VENDOR.SECTION XI – GOVERNMENTAL IMMUNITY AND INSURANCENo term or condition of this Agreement shall be construed or interpreted as a waiver, either express or implied, of the monetary limits, notice requirements, immunities, rights, benefits, defenses, limitations and protections available to the COUNTY under any applicable law, including but not limited to the Colorado Governmental Immunity Act, as currently written or hereafter amended or implemented.The VENDOR shall obtain and maintain continuously for the term of this Agreement, at its expense, all insurance coverage set forth in the RFP. The VENDOR is not relieved of any liability or other obligations assumed pursuant to this Agreement by reason of its failure to obtain or maintain insurance or by reason of its failure to procure or maintain insurance in sufficient amounts, durations, or types. SECTION XII – TERMINATION AND DEFAULT License Termination. VENDOR may only terminate COUNTY’s Perpetual Software License as granted herein if COUNTY commits a Material Breach of the terms and conditions of this Agreement, subject to the notice and opportunity to cure provide herein. If COUNTY’s Material Breach is uncured and VENDOR elects to terminate the Agreement pursuant to this Article XII, upon notice of such election COUNTY shall discontinue all use of the Software and shall immediately return to VENDOR all copies of the Software, all related Documentation, and all other materials which contain any Confidential Information of VENDOR in COUNTY's possession or control. In such event, COUNTY shall also permanently delete all copies of all such items residing in COUNTY’s on or off line computer memory. VENDOR, with prior approval from COUNTY, may enter into any location controlled by COUNTY that has any Software, Documentation, and any other Confidential Information of VENDOR, to repossess and remove and/or to deactivate any Software. COUNTY shall, upon request from VENDOR, certify in writing to VENDOR that all copies of the Software and all Documentation, and all other materials required to be returned to VENDOR hereunder or to be deleted have been returned or deleted as appropriate.Default. Each requirement, duty, and obligation set forth herein is substantial and important to the formation of the agreement between the parties, and therefore, is a material term. In the event that either party defaults in the performance of any obligation of this Agreement, the non-defaulting party shall send the defaulting party written notice specifying the default and describing the actions required to cure the default. Such notice shall provide a minimum of 30 calendar days to the defaulting party to cure the default. If the default is not timely cured, the non defaulting party may elect to immediately terminate the Agreement, and in such event, shall notify the defaulting party in writing and specify the effective date of termination. VENDOR acknowledges that the Software System may be of little or no value to COUNTY if not fully compliant with the Functional Specifications. In the event all or any portion of the Software System does not timely comply with the Functional Specifications, and VENDOR is unwilling or unable to timely cure such default as provided in §12.2 above, COUNTY will be entitled to a full refund of all amounts paid to VENDOR for the Software System, in addition to any other remedies available to COUNTY by law or pursuant to this Agreement.No Waiver. The formal or informal waiver of any breach or default under this Agreement shall not be deemed a waiver of any other breach or default. The failure of either party to enforce any provision of this Agreement shall not be construed as or constitute a waiver of the right of such party thereafter to enforce such provision. Notwithstanding this Article XII or any other provision of this Agreement, VENDOR shall not be relieved of liability to the COUNTY for damages sustained by the COUNTY by virtue of any breach of the Agreement by the VENDOR and the COUNTY may withhold any payments to the VENDOR for the purpose of setoff until such time as the exact amount of damages due the COUNTY is determined.ARTICLE XIII – NON-DISCRIMINATION AND EQUAL EMPLOYMENTThe VENDOR will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The VENDOR shall adhere to acceptable affirmative action guidelines in selecting employees and shall ensure that employees are treated equally during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising; layoff or termination, rates of pay or other forms of compensation; and selection for training, including apprenticeship. The VENDOR agrees to post in conspicuous places, available to employees and applicants for employment, notices provided by the local public agency setting forth the provisions of this nondiscrimination clause.The VENDOR will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement so that such provisions will be binding upon each subcontractor, provided that the foregoing provisions shall not apply to contracts or subcontracts for standard commercial supplies or raw materials.The VENDOR agrees to comply with such rules, regulations or guidelines as the COUNTY, State or Federal agencies may issue to implement the requirements in this Article 13.As applicable, the VENDOR shall be licensed as required by law.ARTICLE XIV – NOTICEAll notices given pursuant to or related to this Agreement shall be made in writing to the individuals below, and shall be deemed given when delivered personally during normal business hours to the above offices or when mailed by registered or certified mail, return receipt, and postage prepaid. Either party may from time to time change its address for notification purposes by giving the other party written notice of the new address and the date of upon which it will become effective.In the case of COUNTY: [Name, Title, Address, Phone #]In the case of VENDOR:[Name, Title, Address, Phone #]ARTICLE XV – MISCELLANEOUS PROVISIONSIndependent Contractor. The VENDOR is an independent contractor and is free to perform services for other clients. Notwithstanding any provision of this Service Agreement, all personnel assigned by the VENDOR to perform work under this Service Agreement shall be and remain as all times employees of the VENDOR for all purposes. THE VENDOR, AS AN INDEPENDENT CONTRACTOR, IS NOT ENTITLED TO WORKERS’ COMPENSATION OR UNEMPLOYMENT BENEFITS THROUGH THE COUNTY AND IS OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONES EARNED PURSUANT TO THE AGREEMENT RELATIONSHIP.Laws and Regulations. The VENDOR shall comply with all applicable Federal, State and Local laws, rules, regulations, and codes when performing work related to this Service Agreement. This Agreement shall be deemed to have been made in and construed and enforced in accordance with the laws of the State of Colorado. The parties consent to exclusive jurisdiction and exclusive venue of the federal and state courts with jurisdiction in Larimer County, Colorado, for resolution of any and all disputes related in any way to this Service Agreement. Authorized Representative. The COUNTY designates [Name, Title], as the COUNTY’s Authorized Representative for this Service Agreement for purposes of administering and coordinating the work performed by VENDOR under this Service Agreement. The Authorized Representative does not have the authority to alter or modify the terms of this Service Agreement.Excusable Delay. No party shall be liable for delay in performance or failure to perform its obligations per this Service Agreement if such failure is the result of causes beyond the reasonable control of a party such as, but not limited to, acts of God or public enemies, labor disputes, extreme weather conditions, supplier or material shortages, embargoes, rationing, acts of local, state, or national governments or public agencies, utility or communication failures, epidemics, riots, terrorism, civil commotion, or war. No Assignment. All of the services contemplated under this Service Agreement are personal and shall not be assigned, sublet or transferred without the prior written consent of the COUNTY.Appropriations. The COUNTY is a Colorado public entity and all financial obligations extending beyond the current fiscal year are subject to funds being budgeted and appropriated therefore. In the event an appropriation is not so made, the Agreement shall terminate without either party being in default.Conflict of Interest. The VENDOR warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this contract, and that it has not paid or agreed to pay any company or person, other than bona fide employees working solely for the VENDOR, any commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this contract. For breach or violation of this warranty, the COUNTY will have the right to annul this contract without liability, or, in its discretion to deduct from the contract price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee.No Solicitation. During the term of this Service Agreement and for a period of two (2) years thereafter, neither party shall solicit for employment any current employee of the other party who has been directly or indirectly involved in the subject matter of this Service Agreement.Review and Audit of Records. VENDOR and any of its contractors and subcontractors shall maintain all books, documents, papers, accounting records and other evidence pertaining to costs incurred and work performed under this Service Agreement (“Records”). All Records shall be maintained until the expiration of three (3) years following the end of the term of this Service Agreement. Upon request of the COUNTY, at any time during the term of this Service Agreement, or three (3) years thereafter, VENDOR shall make full disclosure to the COUNTY and make available for inspection and audit all Records.No Third Party Beneficiaries. This Service Agreement is for the sole benefit of the COUNTY and VENDOR and nothing herein shall be construed as giving any benefits, rights, remedies, or claims to any other person or entity. The enforcement of the terms and conditions of this Service Agreement and all rights of action relating to such enforcement shall be strictly reserved to the COUNTY and the VENDOR.Severability. In the event any provision of this Service Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, such provision shall be construed so as to make it enforceable to the greatest extent permitted and all remaining provisions shall remain in full force and effect. Entire Agreement. This Service Agreement, including all exhibits, constitutes the entire agreement between the parties and any representations made by either party, including its employee, official, or representative, are null and void unless stated in this Service Agreement. No alterations, amendments, or changes to this Service Agreement, or additional terms or conditions related to the subject matter of this Service Agreement shall be incorporated into this Service Agreement or be binding upon the parties unless expressly agreed in writing.IN WITNESS WHEREOF, COUNTY and VENDOR execute this Agreement as of the dates signed below.BOARD OF COUNTY COMMISSIONERS,LARIMER COUNTY, COLORADOLew Gaiter III, ChairDATEBoard of County CommissionersATTEST: Deputy Clerk[Insert name of Vendor][Name, Title]DATE ................
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