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Home My WebLink About20112841.tiff CORE Business Technologies Software License and Use Agreement r. .• CORE Business Technologies k Software License and Use Agreement THIS AGREEMENT, made and entered into by and between Wonderware Inc. d/b/a CORE Business Technologies, (hereinafter called "CORE"), a corporation duly authorized and existing under the laws of the State of Rhode Island and having its principal offices at 2224 Pawtucket Avenue, East Providence,RI 02914, and Weld County, (hereinafter"Customer),a Colorado Corporation having its principal offices at 915 10"'Street, Greely CO 80631. WHEREAS: CORE desires to grant to Customer, and Customer desires to acquire from CORE a non-exclusive right and license to use certain computer software as hereinafter defined. 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: Incorporation of Schedules and Exhibits. Any Exhibit or Schedule signed by the parties and referring to this License Agreement, and any Exhibit or Schedule referred to herein or referring to this License Agreement, shall be incorporated into this License Agreement. In the event of a conflict between the documents comprising this License Agreement, the provisions of any Exhibit or Schedule shall take precedence with respect to its subject matter, and the terms of any Exhibit or Schedule shall take precedence over any other terms. SECTION 1 - 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: 1.1 "Agreement Term." The Initial Agreement Term plus any subsequent one year renewals. 1.2 "Designated Customer Personnel." Customer selected employees who are designated to be the front line, first call User support. These Customer employees answer User questions and elevate questions they are not able to answer to CORE support personnel. 1.3 "Enhancements." Changes or additions, other than Maintenance Modifications, created by either CORE or by the Customer, 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. 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 Licensed Documentation, or a procedure or routine that, when observed in the regular operation of the Licensed Program, eliminates the practical adverse effect on Customer of such non-conformity. 1.6 "Initial Agreement Term": A 12-month time period that starts with project acceptance or customer production use, whichever occurs first. &wai * Q , ' ° c t : ra cs oPac/5 iu 3� i t -1I Iv-ate- dot/ 2011-2841 Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 CORE Business Technologies Software License and Use Agreement 1.7 "Licensed Documentation." The system and other documentation made available by CORE, for the Licensed Program. 1.8 "Licensed Program." The computer program specifically identified within the Exhibits herein as applications within the iPayment Revenue Portal product line, including object code, written and electronic documentation as well as related procedural code, Enhancements, Error Corrections and Maintenance Modifications. 1.9 "Maintenance Modifications." Modifications or revisions, created by either CORE or by the Customer, to the Licensed Program or the Licensed Documentation that correct Errors. 1.10 "Privacy Laws." All present and future laws and regulations relating to the privacy of individually identifiable medical, financial or other information including, the Health Insurance Portability and Accountability Act of 1996 and rules and regulations promulgated thereunder (HIPAA). 1.11 "Proprietary Information and Intellectual Property." Unpublished and published "know-how" and "trade secrets" which shall include, without limitation, the Licensed Program, the Licensed Documentation, computer programs, program designs, algorithms, subroutines, system specifications, test data, charts, graphs, operation sheets, and all other technical information, owned by CORE 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. 1.12 "Normal Working Hours." The hours between 8AM and 5PM EST. on the days Monday through Friday, excluding regularly scheduled holidays of CORE. All references to hours of the day refer to Eastern Standard time (EST). 1.13 "Releases." New versions of the Licensed Program, defined by version number and associated release notes provided at time of release. 1.14 "Specifications." The functional performance parameters of the customizations and Enhancements, if any, developed and delivered by CORE pursuant to this agreement. The final project Specification, once agreed to in writing by the parties, will be the controlling functional document for the project. 1.15 "Users." The designated Customer employee(s) including contracted staff for whom a unique identifier and password have been assigned by Customer to access and operate the licensed software. SECTION 2—GRANT OF LICENSE 2.1 Contract Commencement and Term. This Agreement shall be effective from the date of its signing by customer and accepted by a duly authorized officer of CORE and shall remain in effect for each Licensed Program until terminated by either party as provided in Section 7 hereof. 2.2 Scope of License. Subject to compliance by Customer with the terms hereof, CORE hereby grants to Customer, for the Agreement Term, unless terminated as provided herein, a personal, non-exclusive, non-transferable license (without the right of sublicense), to: Install the Licensed Program and use it only in object code form solely on computers owned or leased and used by Customer at its facilities, for up to the number of concurrent users specified in this Agreement in Exhibit A, for the sole and express purpose of supporting the internal business activities of Customer. 2.3 Minimum Hardware and Software Requirements. Customer acknowledges that in order for the Licensed Program to be executed, Customer's computers must meet or exceed the minimum published hardware, software (including third-party software) and communication requirements for the Licensed Program as provided in Exhibit C. Customer agrees such requirements are subject to change, and that future versions of the Licensed Program may have different hardware and software requirements than those presently in effect. The acquisition of necessary hardware and software meeting the requirements then in effect shall be the sole responsibility of Customer. CORE agrees that they have fully disclosed current hardware, software and operating system requirements for the current release of the Licensed Program. Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 2 CORE Business Technologies Software License and Use Agreement 2.4 Acquisition of Third-party Software. The acquisition of necessary licenses and support for this software shall be the sole responsibility of Customer. Specifications for this third-party software are provided in Exhibit C. Customer acknowledges that CORE software support does not cover third-party software unless otherwise specified. 2.5 Custom Modifications. The Customer acknowledges that the standard software listed on Exhibit A does not include custom modifications, such as software interfaces to the Customer's host systems, check digit routines, interest computations, OCR edits, etc. The development by CORE of custom specifications is chargeable by CORE at rates not to exceed Exhibit A for 2 years from date of production use. Exhibit D provides the scope of custom modifications, if any. If further definition is needed, it will be agreed to by the parties in a final project Specification. 2.6 Assignment of Rights in Developed Maintenance Modifications and Enhancements. All right, title, and interest in all Maintenance Modifications and Enhancements developed for Customer during the term of this Agreement are hereby assigned by Customer to CORE, for CORE's own purposes, whether for CORE's corporate purposes or for CORE's other third party Customers, all without any royalty or other payment payable by CORE to Customer. Notwithstanding the foregoing, CORE shall have no liability therefore under this Agreement, or otherwise at law or in equity, to Customer. 2.7 Availability of CORE Enhancements. CORE agrees to offer to Customer a license to Enhancements that CORE develops and offers generally to Customers of the Licensed Program according to the terms under Section 9.1. SECTION 3—TITLE TO MATERIALS 3.1 Title to Licensed Program and Licensed Documentation. Customer acknowledges that all right, title, and interest in and to the Licensed Program and Licensed Documentation, including the media on which the same are furnished to Customer, are and shall remain at all times the sole and exclusive property of CORE. Customer 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 Customer. The Licensed Program and the Licensed Documentation are and shall remain the sole property of CORE, regardless of whether Customer, its employees, or contractors may have contributed to the conception of such work, joined in the effort of its development, or paid CORE for the use of the work product. Customer is granted only a limited right of use of the Licensed Program and the 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 CORE or Customer shall remain with CORE. Customer and it's strategic IT partners shall treat all such Enhancements and Maintenance Modifications in accordance with the restrictions and limitations set forth herein respecting Licensed Programs and Licensed Documentation. SECTION 4-FEES AND PAYMENTS 4.1 License Fees. Customer shall pay CORE the License Fees for the Licensed Program set forth in Exhibit A. Other services supplied by CORE shall be billable in accordance with Exhibit B unless otherwise specified in an addendum to this Agreement. 4.2 License Key. Upon payment of the Annual License, support & maintenance fee set forth in Exhibit A for the Initial Agreement Term a software based license key which is updated through the application configuration tool will enable operation of the Licensed Program for the associated date range. Payment of the Annual License Fee and acceptance of said Annual License Fee by CORE, entitles the Customer to: Reasonable phone support in the form of counsel and advice on the use of the Licensed Program for designated Customer personnel; Corrections for problems diagnosed as defects in the Licensed Program; Solutions or"workarounds" to problems relating to the Licensed Program as such solutions become known to CORE; All Enhancements to the current version of the Licensed Program or the Licensed Documentation which are developed in the normal course of product life; All Maintenance Modifications to Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 3 CORE Business Technologies Software License and Use Agreement the current version of the Licensed Program or the Licensed Documentation as a result of program maintenance; In the event the Licensed Documentation is completely revised or a new edition is published, such new editions or complete revisions will be provided as part of the current software product in filling any new orders after the date of publication, and otherwise may be purchased separately for the then-current price; and Error Corrections to the Licensed Program or the Licensed Documentation. 4.3 Per Diem. Charges for meals and incidental expenses associated with the delivery of the Licensed Program will be charged on a per diem basis. Meal per diem reimbursement shall be$35.00 per day and does not require original receipt. 4.4 Other Costs. Other costs, including but not limited to air/train/taxi fare, charges for reasonable and normal travel time to and from the Customer site, parking, freight costs, reproduction charges, and other incidental expenses incurred by CORE on account of this Agreement, shall be billed to the Customer. 4.5 Interest Fee. CORE shall have the right to charge Customer a monthly interest fee of 1.5% (18% annually) for all undisputed invoices which are over thirty(30)days past due. 4.6 Payment. Payment for all fixed fees and charges shall be in accordance with the payment schedule set forth in Exhibit B - Billing/Payment Schedule. Payment for all estimated fees and charges shall be in accordance with the terms and conditions set forth in Exhibits D—Statement of Work. 4.7 Taxes. The fees and charges specified in this agreement 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. Customer shall pay any such amounts upon request of CORE accompanied by evidence of imposition of such taxes, or provide evidence of tax exemption status acceptable to the taxing authority. SECTION 5 PROTECTION OF PROPRIETRY INFORMATION AND MATERIALS 5.1 Acknowledgement of Proprietary Information and Materials; Limitations on Use. Customer acknowledges that the Licensed Program and the Licensed Documentation and all other Proprietary Information are unpublished works for purposes of federal copyright law and embody valuable confidential and secret information of CORE, the development of which required the expenditure of considerable time and money by CORE. Unless otherwise required by law, Customer shall treat the Licensed Programs the Licensed Documentation and all other Proprietary Information 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, Customer shall require that the Proprietary Information and the Licensed Documentation to be kept on Customer's premises shall be maintained in a manner so as to reasonably preclude unauthorized persons from gaining access thereto, and Customer shall permit access only as necessary for either party's use thereof in accordance with the terms of this Agreement. 5.3 Compliance with Privacy Laws. Each party shall also be responsible for ensuring that performance of its obligations and exercise of its rights under this Agreement comply with all applicable Privacy Laws. If this Agreement or any practices which could be, or are, employed in performance of this Agreement are inconsistent with or do not satisfy the requirements of any Privacy Laws, (i) the parties shall agree in good faith upon an appropriate amendment to this Agreement to comply with such laws and regulations and (ii) the parties shall execute and deliver any documents required to comply with such Privacy Laws including, without limitation, any business associate agreements required under HIPAA. Without limiting the generality of the foregoing, the parties agree to be bound by the terms of the HIPAA Business Associate Agreement attached hereto as Exhibit E. 5.4 Customer assurance with respect to reverse engineering. Customer shall refrain from taking any steps to reverse assemble, reverse compile or otherwise derive a source code version of the Licensed Program. 5.5 Proprietary Legends. Customer shall not permit anyone other than CORE to remove any proprietary or other legend or restrictive notice contained or included in any material provided by CORE. Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 4 CORE Business Technologies Software License and Use Agreement 5.6 Reproduction of Licensed Documentation. Customer may reproduce the Licensed Documentation provided by CORE, provided that such reproductions are for the private internal use of Customer, and all such reproductions bear CORE's copyright notices and other proprietary legends. 5.7 Injunctive Relief. Customer recognizes and acknowledges that any use or disclosure of the Proprietary Information by Customer in a manner inconsistent with the provision of this Agreement may cause CORE irreparable damage for which remedies other than injunctive relief may be inadequate. In the event of such a violation of this Agreement, CORE shall be entitled, upon application to a court of competent jurisdiction, to a temporary restraining order or preliminary injunction, to restrain and enjoin Customer from such violation, without prejudice to any other remedies available to CORE. CORE recognizes and acknowledges that any use or disclosure of the Proprietary Information by CORE in a manner inconsistent with the provision of this Agreement may cause Customer irreparable damage for which remedies other than injunctive relief may be inadequate. In the event of such a violation of this Agreement, Customer shall be entitled, upon application to a court of competent jurisdiction, to a temporary restraining order or preliminary injunction, to restrain and enjoin CORE from such violation, without prejudice to any other remedies available to Customer. 5.8 Customer assurance with respect to users. Customer shall assure that Customer's users comply with the terms and conditions of this Section 5. 5.9 Use of Name Except as may be necessary for it to carry out its obligations under this Agreement, Vendor shall not under any circumstances whatsoever use User's name, trade names, trademarks, or service-marks, nor the name of any employee of User in any public announcement, news release, advertising, or promotional literature, without User's express, prior, written consent, which consent may be withheld in User's absolute discretion. 5.10 Survival of Terms. The provisions of Section 5.1 through Section 5.9 shall survive termination of this Agreement for any reason. 5.11 PCI Compliance. All CORE software subject to Payment Application Data Security Standards (PA-DSS) shall be validated by CORE in accordance with PCI Security Council published requirements. All software provided as a service which is subject to Payment Card Industry Data Security Standard shall be validated in accordance to the PCI Security Council published requirements. SECTION 6— LIMITED WARRANTY, LIMITATION OF LIABILITY, AND INDEMNITY 6.1 Limited Warranty Against Infringement. CORE warrants that to the best of its knowledge the Licensed Program and the Licensed Documentation, as delivered to Customer, do not infringe any third-party rights in patent, copyright, or trade secret in the United States. 6.2 Limited Warranty of Conformity. CORE warrants, for the benefit only of Customer, that for the life of this Agreement, the Licensed Program will conform in all material respects to the Licensed Documentation (except for modifications made by Customer or by CORE at the request of Customer), but only if Customer maintains uninterrupted Software Support as described in Section 9. CORE assumes no responsibility for obsolescence of the Licensed Program nor for lack of conformity occurring from Customer's failure to update the Licensed Program with distributed Enhancements, Maintenance Modifications, or Error Corrections. 6.3 Force Majeure. CORE shall not be liable for failure to deliver or delays in delivery occasioned by causes beyond CORE's control including, without limitation, fires, embargoes, war (or other outbreaks of hostility), governmental acts and regulations, receipt of orders from all sources in excess of its suppliers' then-scheduled production capacity, and other causes beyond CORE's control. 6.4 Disclaimer. Except as specifically set forth herein, CORE makes no warranties, whether expressed or implied, regarding or relating to the Licensed Program or the Licensed Documentation or to any other materials furnished or provided to Customer hereunder. CORE specifically disclaims all implied warranties of merchantability for use beyond the scope of this agreement. CORE does not warrant that the functions contained in the Licensed Program will operate in the combination which Customer selects for use, unless that combination is permitted as a function in the documentation, and does not warrant that the operation of the Licensed Program will be uninterrupted or error-free. Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 5 CORE Business Technologies Software License and Use Agreement 6.5 Limitation of Liability. Except for other exclusive remedies expressly provided under this Agreement relating to CORE's warranties and obligations concerning the Licensed Program, Customer's exclusive remedy in the event of any breach of this Agreement by CORE shall be the recovery of its actual damages but not to exceed the amount paid by Customer under this Agreement as the License Fee for the Licensed Program, if the Licensed Program causes Customer's damages, and not to exceed the amount paid by the Customer under this Agreement as fees for Software Support, if the Software Support causes Customer's damages. The above stated liability is not applicable in the event of a third party claim. Except as specifically provided in this Agreement, there are no other warranties, express or implied, including, but not limited to any implied warranties of merchantability or fitness for a particular purpose. In no event shall CORE be liable to the Customer for loss of profit, indirect, special, or consequential damages arising out of any breach of this Agreement or of obligations under this Agreement or the license granted. or for any claim made against the Customer by any other party, even if CORE has been advised of the possibility of such a claim. CORE shall not be liable for any damages caused by delay in delivery, installation, or furnishing of the software or other program products or services under this Agreement. This limitation of remedy and damages is pursuant to and consistent with the Uniform Commercial Code Section 2-718 and Section 2-719, as defined and found in the General Laws of the State of Rhode Island, Title 6A. No action arising out of this Agreement may be brought by either party more than one (1) year after the action has accrued. An action shall be considered to accrue when the party knew or should have known of the damage or other event giving rise to the action. It is specifically agreed that Customer maintains the auditing of transaction data. The action or lack of action taken by the Customer as a result of transaction processing is the sole responsibility of the Customer. 6.6 Exclusive Remedy. As the exclusive remedy of Customer for any nonconformity or defect constituting an Error in the Licensed Program for which CORE is responsible, CORE shall use commercially reasonable efforts to provide Maintenance Modifications with respect to such Error. However, CORE 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 Customer, or(2) failure of Customer to notify CORE of the existence and nature of such nonconformity or defect upon its discovery. 6.7 Non-Approved Modifications. In the event Customer makes use of any software programming in connection with the equipment supplied by CORE which is not provided by or approved in writing by CORE, the Customer acknowledges that CORE has made no representation or warranties with respect to any product not supplied by CORE concerning its performance on the equipment or service supplied by CORE. CORE shall incur no liability to Customer arising out of the use of such software or devices or the furnishing of such services. Customer acknowledges that no software is being furnished to Customer by CORE, except pursuant to this Agreement or separate license Agreements between Customer and CORE. 6.8 CORE Indemnification. CORE shall and does hereby agree to indemnify, hold harmless, and save Customer from liability against any claim, demand, loss, or action alleging that the Licensed Program and the Licensed Documentation or any Maintenance Modifications or Enhancements made by CORE infringe any third-party rights in the United States respecting copyright, trade secret, or patent. 6.9 New Platform Protection. As long as Customer maintains a continuous software support Agreement with CORE for each of the modules included herein, Customer shall have the right to transfer the licenses for any and all modules to any new hardware/platform environment (hardware and system software as defined herein) then currently marketed and supported by CORE. Customer agrees to pay for any services and out-of-pocket costs associated with the migration to the new platform. The service costs will be billed at a rate not to exceed costs charged to other clients for similar tasks 6.10 Bankruptcy/Support Cessation. a) The term "default" as used in this Agreement shall mean the institution of proceedings by or against CORE under federal or state bankruptcy laws and assignment or receivership for the benefit of creditors. b) In the event that CORE ceases to provide support for the Licensed Program for a period of forty-five (45)days, then a complete and documented copy of all related source code corresponding to the then- current released version of the Licensed Program as operated by Customer shall be released from escrow, for Customer's internal use only and not for resale. c) Both parties acknowledge that they repose trust and confidence in each other so that, in the event of the bankruptcy of one party, the other party will be excused from accepting performance of the Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 6 CORE Business Technologies Software License and Use Agreement bankrupt party's obligations under this Agreement from anyone other than an assignee approved in writing by the non-bankrupt party notwithstanding the provisions of Sections 365(c) and 365(f) of the United States Bankruptcy Code. Both parties agree that the Licensed Program and the Licensed Documentation shall be deemed "intellectual property" as the same shall be defined in Section 101- 35(a) of the Bankruptcy Code, and without limitation, this Agreement shall be governed by Section 365(n) of the Bankruptcy Code in the event that CORE commences a case under the Bankruptcy Code and Customer shall be entitled to all other rights of a non-debtor provided under Section 365, without limitation, hereby. 6.11 Disabling Code Warranty Software operations is based on the presence of a valid license key. Vendor warrants to User that all Software licensed hereunder does not contain any undisclosed disabling code (defined as computer code designed to interfere with the normal operation of the Software or User's hardware or software) or any program routine, device or other undisclosed feature, including but not limited to, a time bomb, virus, drip-dead device, malicious logic, worm, Trojan horse, or trap door which is designed to delete, disable, deactivate, interfere with or otherwise harm the software or User's hardware or software. 6.13 Virus/Malicious Software Warranty Vendor warrants to User that: (a) Vendor has used its best efforts to scan for viruses within the Software, and (b) no malicious System will be supplied under this Agreement 6.13 Survival of Terms.The provisions of Section 6.1 through Section 6.13 shall survive termination of this Agreement. SECTION 7—TERM,TERMINATION AND CANCELLATION 7.1 Term and Termination. A. The rights granted under this License Agreement commence as of the effective date and continue for the Initial Agreement Term of one (1) year and may be renewed by Customer for successive one- year terms. B. Vendor or Customer may terminate any successive one year term from the Expiration date with at least a ninety (90) day written notice of any subsequent Anniversary of the Expiration date, to the other party, effective on that Anniversary of the expiration date. Except as set forth in Section 7.1.D below, License Fees are not refundable. C. Termination upon Breach. In the event either party gives written notice to the other that such other party has materially breached the terms of this Agreement, and such breach shall not have been cured within Sixty (60) business days of the giving of such notice, the party giving such notice shall have the right to terminate this Agreement at any time thereafter upon written notice of such termination to the other party with or without additional cause. Notwithstanding the foregoing, CORE may terminate this License Agreement and the rights granted hereunder if Customer fails to pay any amounts due under this License Agreement as and when due (CORE will send written notice to Customer advising of such breach with 60 days to cure). Upon termination for failure to pay amounts due after 60 days after written notice has been sent to cure the original breach and the remaining payments for the initial term, CORE may terminate this agreement. In such event, Customer must make all remaining payments due in the Initial Agreement Term within 90 days of termination. Customer shall immediately cease to use the Licensed Program and, if such matter is not resolved within six (6) months of the above- mentioned written notice, dispose of Documentation by returning such Documentation to CORE or, at CORE's option, by destroying the same and certifying such destruction in writing. Upon payment of all amounts due after Customer has been advised of breach, the Customer may immediately resume use of the Licensed Program for the remainder of the Initial Agreement Term.THIS AGREEMENT IS NON- CANCELLABLE FOR THE INITIAL AGREEMENT TERM EXCEPT AS PROVIDED IN THIS AGREEMENT. The term "material breach" shall include, but not be limited to, failure by CORE to provide the deliverables and/or services as promised herein in a timely manner. D. This Agreement may be terminated by a party due to assignment of the business of the other party for the benefit of creditors or upon filing of a petition into receivership, or a petition of bankruptcy(voluntary or involuntary)which has not been discharged within Sixty(60)days. Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 7 CORE Business Technologies Software License and Use Agreement E. Effect of Termination. Upon termination of this Agreement, neither party shall have any further obligation hereunder except for (i) obligations accruing prior to the date of termination, and (ii) obligations or covenants contained herein that are expressly intended to extend beyond the term of this Agreement, including, without limitation, covenants relating to Confidentiality and Indemnification. 7.2 Actions Upon Termination. Upon termination of this Agreement for any reason, Customer shall immediately cease use of, and return forthwith to CORE, the Licensed Program and the Licensed Documentation, and any copies thereof, including Maintenance Modifications and Enhancements. SECTION 8- MISCELLANEOUS 8.1 Entire Agreement. This Agreement constitutes the entire Agreement between the parties and supersedes all proposals, presentations, RFP's, representations, and communications, whether oral or in writing, between the parties on this subject. Neither party shall be bound by any warranty, statement, or representation not contained herein. 8.2 Acceptance. This Agreement, once signed by Customer, is subject to acceptance by an officer of CORE. 8.3 No Assignment. The Customer shall not sell, transfer, assign or subcontract any right or obligation hereunder without the prior written consent of CORE. Any act in derogation of the foregoing shall be null and void; provided, however, that any such assignment shall not relieve Customer of its obligations under this Agreement. 8.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Rhode Island. 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. 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 other party. 8.7 Acceptance Testing. Within ten (10) business days of CORE's notification to Customer that the Licensed Program or portion thereof is installed and the applicable training administered, Customer shall begin performance of acceptance testing, for the sole and express purpose of determining whether the Licensed Program operates as described in the Licensed Documentation and Specification. Such acceptance shall not be unreasonably withheld. Reasons for non- acceptance shall be the non-conformity of the software to the Licensed Documentation and Specification. Customer must complete such acceptance testing within thirty (30) days of commencement of testing. If Customer uses the Licensed Program for production purposes, the Licensed Program shall be deemed to be accepted under the provisions of this Agreement. The passage of the thirty (30) day testing period without official written notification from Customer to CORE that the Licensed Program has failed acceptance testing shall mean that the Licensed Program is accepted and that any balance of the license fees for the subject Licensed Program which remains outstanding is immediately due and payable. 8.8 Failure of Acceptance Testing, Re-Testing. If Customer demonstrated that the Licensed Program does not successfully pass acceptance testing, Customer shall notify CORE 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. CORE 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 the first notice of failure. CORE shall notify Customer when such re-testing can begin and the Customer shall complete acceptance testing within a period of ten (10) business days from the date of notification. If the parties agree that the Licensed Program continues to fail acceptance testing, Customer shall notify CORE in writing of Customer's intention to terminate and if CORE fails to remedy the defect within sixty(60) days of receipt of said notification, Customer has the right, at its option, to terminate the Agreement by giving written notice of such termination to CORE. Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 8 CORE Business Technologies Software License and Use Agreement Upon Customer's termination of this Agreement due to failure of the second Acceptance Test, Customer shall promptly return the Licensed Program and the Licensed Documentation and all related materials to CORE. CORE will return all license and service fees paid by the Customer. 8.9 Insurance. During the term of this Agreement, CORE shall maintain an appropriate level of insurance against all liability for personal and property damage caused by CORE's employees while on Customer's premises and shall exhibit certificates of evidence of such insurance upon request by Customer. 8.10 Equal Opportunity Employer. CORE shall not discriminate in its recruiting, hiring, promotion, demotion, or termination practices on the basis of race, religious creed, color, national origin, ancestry, sex, age, or physical handicap in the performance of this Agreement. 8.11 Source Code. CORE agrees to maintain in escrow a copy of the then most current version of the Licensed Program. Customer shall pay costs of $750.00 per year for maintaining the escrow. A copy of the Licensed Program source code shall be released to Customer subject to the terms of the Escrow Agreement and section 6.11 herein. 8.12 Modifications. This Agreement may be modified only by addendum if signed by authorized personnel for CORE and Customer. 8.13 Waiver. No term or condition of this Agreement shall be deemed to have been waived, nor shall there be an estoppel against the enforcement of any provision of this Agreement, except by written instrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver and shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived. 8.14 Attorneys' Fees and Interest. In case of any breach of this Agreement by CORE or Customer, both CORE and Customer shall be entitled to recover their costs of enforcement, collection, and litigation, including all reasonable attorneys'fees and expenses. SECTION 9— SOFTWARE SUPPORT 9.1 Scope of Service. CORE shall render support and services during the following working Hours: Monday through Friday 8:30 a.m. to 5:00 p.m. and after hours pager support - Monday through Friday 5:00 p.m. to 8:00 p.m. for the following: Supported. Version — CORE shall support the version of the Licensed Program being used by the Customer regardless of subsequent upgrades for a period of 3 years, it is understood by Customer that implementation of upgrades maybe necessary to address certain issues. Telephone Support—calls for assistance related to operation of the Licensed Program, reporting of a potential error condition or abnormal termination of a program, or request for minor assistance related to the Licensed Program. Reasonable phone support in the form of counsel and advice on the use of the Licensed Program for designated Customer personnel. Corrections for problems —diagnosed as defects in the Licensed Program; Solutions or"workarounds" to problems relating to the Licensed Program as such solutions become known to CORE. Enhancements — enhancements to the current version of the Licensed Program or the Licensed Documentation which are developed in the normal course of product life. Maintenance Modifications — to the current version of the Licensed Program or Licensed Documentation as a result of program maintenance. In the event the Licensed Documentation is completely revised or a new edition is published, such new editions or complete revisions will be provided as part of the current software product in filling any new orders after the date of publication, and otherwise may be purchased separately for the then-current price; and Error Corrections to the Licensed Program or the Licensed Documentation. Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 9 CORE Business Technologies Software License and Use Agreement Telephone Support — Calls for assistance related to operation of the Licensed Program, reporting of a potential error condition or abnormal termination of a program, or request for minor assistance related to the Licensed Program. Support Enhancements — Selected Enhancements, the nature and type of which shall be determined solely by CORE. Such provision shall not preclude CORE from providing other Enhancements of the Licensed Program for license fees, training charges, and other related service fees and charges. Source Code Maintenance — Library of the Licensed Program maintained by CORE for Customer, complete with modifications authorized by Customer and performed by CORE. Software Warranty—CORE will warrant the Licensed Program to be free from significant software bugs for the term life of this Agreement. Service Level Agreement — CORE will adhere to the SLAs as defined in Exhibit G — Schedule 2 which details the Escalation Policy. 9.2 Customer Responsibilities. Customer shall be responsible for the procuring, installing, and maintaining all computer equipment, telephone lines, communications, interfaces, and other hardware necessary to operate the Licensed Program. 9.3 Proprietary Rights. To the extent that CORE may provide Customer 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 CORE, Customer may (1) install copies of the Licensed Program adequate to serve the concurrent users specified in this Agreement in Exhibit A, in the most current form provided by CORE, in Customer's own facility; and (2) use such Licensed Program in a manner consistent with the requirements of this Agreement, for purposes of serving Customer's internal business needs. Customer may not use, copy, or modify the Licensed Program, or make any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by CORE. 9.4 Disclaimer of Warranty and Limitation of Liability. Except as expressly set forth herein, CORE expressly disclaims any and all warranties concerning the services to be rendered hereunder, whether expressed or implied, including without limitation any warranty or merchantability or fitness for a particular purpose. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above-written. Customer Name CORE Business Technologies BY:OCiL( Lai, c; 7` 1 4-1-407/A— By:(X Printed Name: Barbara Kirkmeyer Printed Name' Title: Chair, Board of Weld County Title:XP/d°- Commissioners Date: OCT 2 C 9011 Date: /a L° ll Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 10 CORE Business Technologies Software License and Use Agreement CORE Business Technologies Software License and Use Agreement Index of Exhibits Exhibit A — CORE Deliverables and Cost Exhibit B — Billing/Payment Schedule Exhibit C — Required Third Party Products, Minimum Hardware Requirements Communication and Connectivity Requirements Exhibit D — Statement of Work Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 11 CORE Business Technologies Software License and Use Agreement EXHIBIT A CORE DELIVERABLES and COST iPayment Application Software Application/Support/New Releases & Maintenance ' Cost iPayment Revenue Portal (Up to 25,000 annual transaction block, $45,000.00 unlimited users) - iCashiering Module - Departmental and Central Cashiering - Additional 25,000 annual transaction block $19,000.00 plus annual license, maintenance and support fee of 20%. • Annual License, maintenance and support $9,000.00/year Includes: • Application License • Application Updates and New Releases • Application Support and Maintenance Services` Cost Services: iCashiering: Setup, Database Configuration, Banner Financials integration, Project Management, System Configuration, Implementation and $35,000.00 QA testing. ACS Services if required are not included in this proposal and are to be contracted directly with ACS. Installation & Training : Cost • Installation — (5) days • Training (Train the Trainer) — (5) days $15,000.00 Customer pays expenses for on-site services Optional Peripheral Hardware Cost • (2) Epson Multifunctional Device $3,158.00/ea Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 12 CORE Business Technologies Software License and Use Agreement EXHIBIT B BILLING/PAYMENT SCHEDULE Payment terms are 40% on order, 40% on delivery to test environment and 20% upon project go-live. Peripheral devices are billed upon delivery: Term Description Amount 40% on order entry CORE will invoice customer upon $41,600.00 order entry for iPayment application, annual license and professional services. 40% on delivery into Test CORE will invoice customer upon $41,600.00 environment delivery of iPayment application into Customer's Test environment for User Acceptance Testing (UAT). 20% on project go-live iPayment application moves into $20,800.00 production. 100% of peripheral hardware on Delivery of Peripheral hardware to $3,158.00 delivery Customer site. Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 13 CORE Business Technologies Software License and Use Agreement EXHIBIT C REQUIRED THIRD PARTY PRODUCTS, MINIMUM HARDWARE REQUIREMENTS COMMUNICATION AND CONNECTIVITY REQUIREMENTS DBMS The Primary iPayment DBMS must be Microsoft SQL Server 2008 or above. The database server must have enough client licenses available for the iPayment application. CORE recommends a minimum of two instances for this database: Test and Production. All initial work is done in Test. Once testing is completed, it will be moved into Production. All production fixes follow the same migration path. We recommend the following for a database server: - 2 QUAD CORE XEON PROCESSORS 2.0GHZ - 16-32 GB MEMORY - 4-6 HARD DRIVES- RAID5 ARRAY FOR OS AND RAID5 ARRAY FOR DATA - DVD-ROM DRIVE Network All workstations that will be accessing iPayment will require connections to the LAN and as a result, will need access to the appropriate IIS Server. IIS Server IIS Server with the following minimum configurations: • IIS Version 6.0 or Higher • Windows 2003 or 2008, 64 bit supported • Server Size is dependent on Client's Network communications, and amount of users accessing the system. • .Net 3.5 • Minimum Server Hardware Specs: - (2)QUAD CORE XEON PROCESSORS 2.0GHZ - (12)GB MEMORY - (2) HARD DRIVES - RAID5 ARRAY FOR OS AND RAID5 ARRAY FOR DATA - OLP WIN SVR STD 2008 R2 SNGL NL - WINDOWS SERVER 2008 MEDIA KIT • The IIS Server will need access to all applicable data stores and interfaces. Minimum PC Requirements PCs should have the following minimum configuration: • 800 MHZ Pentium 3 Processor(or better) • MS Windows 2000 Professional or XP Professional • 128 MB RAM • USB Ports (recommend min. of 4 per PC and is dependent upon the number of peripheral devices per ws) • Monitor with 1024 x 768 or greater. Workstation must be running internet explorer version 6.0 or Higher Workstation must be running .Net version 1.1 Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 14 CORE Business Technologies Software License and Use Agreement All workstations will be installed with appropriate peripheral drivers and active x controls if needed for proper peripheral functions (i.e. CORE Provided Receipt Printers, Card swipes, Pin Pad, Barcode Readers, etc.). Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 15 CORE Business Technologies Software License and Use Agreement EXHIBIT D STATEMENT OF WORK This Statement of Work ("SOW") is made and entered into between CORE Business Technologies ("CORE') and Weld County(hereinafter"Customer') as of the date last written below("Effective Date'). This SOW is governed by, incorporated into, and made part of the Contract between CORE and Customer. This SOW defines the tasks and deliverables of both CORE and Customer, under the terms of the Contract. The terms of this SOW are limited to the scope of this SOW and shall not be applicable to any other SOW, which may be executed and attached to the Agreement. In the event of any conflict between other provisions of the Contract and one or more provisions of this Statement of Work, the provisions of this Statement of Work shall govern. This SOW consists of this signature page and the following sections that are incorporated in this SOW by this reference: 1. Introduction - Description of Work 2. Tasks and Deliverables 3. Project Management 4. Key Deliverables 5. Hardware 6. Software 7. Interfaces IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto have caused this SOW to be duly executed. Customer Name CORE Business Technologies gy(X,��Ji/�-k-C.7— J!9,e4)f9cc �` Printed Name: Barbara Kirkmeyer Printed Name:no...4 <C o �c Title: Chair, Board of Weld County Title: zen' Acce Commissioners Date: OCT 2 0 2011 Date: 40 Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 16 CORE Business Technologies Software License and Use Agreement 1.0 INTRODUCTION - DESCRIPTION OF THE WORK CORE will provide Customer with professional services for the purpose of configuration and installation of the iPayment Revenue Portal (iPayment). The iPayment application will be deployed at the Customer's data center. The following services will be provided: • Fit Gap Analysis • Project Management • Design Planning • System Configuration • Quality Assurance Testing • On-Site Training —Train the Trainer format 2.0 TASKS AND DELIVERABLES - OVERVIEW 2.1 CORE will: 2.1.1 Will participate in a project design meeting and requirements gathering workshop at a location determined by Customer for the purpose of reviewing existing functionality, determining business rules and review the interfacing of payments to Banner Finance. 2.1.1 After the project design meeting and requirements gathering workshop an initial project Specification will be prepared and delivered to Customer within (10) business days from the conclusion of the on-site design meeting. 2.1.2 As a result of the feedback to the initial project Specification a final project Specification will be prepared for the formal acceptance of the Customer. Once accepted, the final project Specification will be incorporated herein as the controlling functional document for all system acceptance testing by CORE and Customer 2.1.3 Provide an iPayment test environment for Customer to install in their data center. 2.1.4 Provide integration to Customer's Banner environment. 2.1.5 Provide support during CORE's normal working hours. 2.1.6 Schedule and conduct system acceptance testing as defined in the final project specification following written acceptance of the final project specification 2.1.7 Provide corrections for all deficiencies determined during system acceptance testing within (5) business days of notification of said deficiency by Customer to CORE in an agreed to form. This is not intended to imply that all corrections will take (5) business days to correct. 2.2 Customer will: 2.2.1 Review and approve the specification document. Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 17 CORE Business Technologies Software License and Use Agreement 2.2.2 Using commercially reasonable efforts provide on request, current existing information, record layouts and documents necessary to establish interfaces with required systems. 2.2.3 Provide access and support to the appropriate personnel and contractors as required by CORE during testing, configuration, development, installation and training, 2.2.4 Provide test workstation with full network connectivity and iPayment clients, all peripheral hardware and connection to the test environment located in Customer's data center, 2.2.5 Schedule and conduct system acceptance testing as defined in the final project specification following written acceptance of the final project specification, 2.2.6 Report all deficiencies as determined during system testing and provide at a minimum of (5) business days for correction by CORE. This is not intended to imply that all corrections will take (5) business days to correct. 3.0 PROJECT MANAGEMENT 3.1 Each party agrees to appoint a principal point of contact, identified in the Project Specification as "Project Managers", to whom all communications between the parties with respect to development of the Products shall be directed. 4.0 PROJECT TASKS & KEY DELIVERABLES 4.1 Award Contract or issue PO 4.2 On-Site Design Meeting at Customer 4.3 Delivery of Initial Project Specification 4.4 Revision and Approval of Final Project Specification 4.5 System Development and Setup at CORE 4.6 Quality Assurance Testing at CORE 4.7 Test System Installation and Training at Customer 4.8 Customer UAT 4.9 Final System Delivery to Customer 4.10 Go Live 5.0 HARDWARE Hardware anticipated for this project will include various workstation payment processing peripherals as listed in Exhibit A. 6.0 SOFTWARE Software anticipated for this project will include the CORE iPayment Revenue Portal. 7.0 INTERFACES 7.1 Core's responsibilities include, but are not limited, to: 7.1.1 Conduct on-site design finalization visit. 7.1.2 Implement existing interfaces according to the mutually agreed to Project Specification. 7.1.3 Develop and integrate Banner Finance interfaces 7.1.4 Assist in standing up test environment in Customer's data center. Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 18 CORE Business Technologies Software License and Use Agreement 7.1.5 QA Testing 7.2 Customer's responsibilities include, but are not limited, to: 7.2.1 Using commercially reasonable efforts, provide, on request, current existing information, record layouts and documents necessary to establish interfaces with required systems, 7.2.2 Notify all Customer's third-party solution providers that the Licensed Program will interface with and request their assistance and cooperation if CORE contacts them for assistance for implementation of the SOW, 7.2.3 Assist Core when required in obtaining information from Customer's third-party solution providers where CORE's repeated efforts have been unsuccessful in obtaining the requested information. If, after CORE exhausts efforts to obtain the necessary information, Customer is also unable to obtain the information, the parties will meet to discuss how best to proceed. Provide Customer staff and contractor resources as reasonably required by CORE to assist in the testing of the interfaces installed. Weld CORE Software License and Use Agreement FINAL.doc 10/20/2011 19 Hello