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Home My WebLink About20090531.tiff56; -os- oz98-ooI LICENSE AND EXCHANGE AGREEMENT FOR GEOGRAPHIC DATA THIS LICENSE AND EXCHANGE AGREEMENT is made and entered into this - day of ntct'1,G11 , 2009, by and between the COUNTY OF WELD, a body politic and corporate of the STATE OF COLORADO, by and through the Board of County Commissioners of the County of Weld, whose address is 915 10°i Street, P.O. Box 758, Greeley, CO 80632, hereinafter referred to as "County," and 5001 CGc A5 C.. L. C. , a OELAWAfLE LIMCD) UA&IUTY COMP/iftc QOAUFlaYthe STATE OF COLORADO, whose address is 310 Vial CgoeDOJ 5T. 50(TE-4000 LAKEWOOD CO go us hereinafter referred to as "Licensee." WITNESSETH: WHEREAS, County and Licensee are authorized to enter into agreements with one another for the purpose of achieving greater efficiencies for the provision of services in both jurisdictions, and WHEREAS, County has been working on the provision of a geographic information system ("GIS") for use by County personnel and by other persons, entities and local governmental jurisdictions upon license agreement, and WHEREAS, Licensee desires to access certain orthophotography, digital planimetric data, and parcels and soils data through a license agreement in exchange for Licensee's supplying to County certain GIS usable information, such as GPS, survey, subdivision, boundary, and map information with respect to the Licensee, and WHEREAS, the parties hereto desire to enter into this License and Exchange Agreement for Geographic Data (hereinafter referred to as "License Agreement") for the purpose of allowing Licensee such access and to facilitate the sharing of GIS information between Licensee and County. NOW, THEREFORE, in consideration of the mutual covenants and conditions herein, the parties hereby agree as follows: ARTICLE I Scope of Agreement A. In consideration of the promises and covenants by Licensee stated herein, County hereby grants Licensee a personal, non-exclusive, non -assignable and non -transferable license for the term of this License Agreement to use certain orthophotography, digital planimetric data, and parcels and soils data (upon completion) owned by Weld County (hereinafter referred to as the "Product") for internal use only by Licensee. Page 1 of 7 Pages C 'Documents and Sufings\ewardyn. SOURCEGASLocal Settings \Temporary Internet Files \0LKC6\DataExchangeAgreemenIUtiliry99_Currenl doc dow v • Q (A, 3-,2-,2009 Pe :{3K-6L-xa DP co 2009-0531 riIISclh B. This Agreement does not constitute a sale of any title or interest in the Product. Title to the Product is not transferred to Licensee. Ownership of the Product and of any authorized copies made by Licensee is vested in County, subject to the rights granted to Licensee in this License Agreement. The County reserves all rights not expressly granted to the Licensee by this License Agreement. Licensee understands this is a one-time delivery and that the County has no responsibility for updating the Product or information contained therein; however, Licensee may receive any update created by County upon request. County shall have no obligation or responsibility to provide maintenance, support or training to Licensee. D. No part of the Product may be copied, reproduced or transmitted in any form or by any means whatsoever, including but not limited to, electronic, mechanical, photocopying, recording, scanning, or by any information retrieval system except for "approved purposes", without the express written permission of the County. "Approved purposes" under this agreement shall include the following: Unrestricted use of the Product on the Licensee's computers or by Licensee's contractors' or agents' computers for purposes of their contract or agency; 2. Use by the Licensee to create a 'new product', which uses as a component of said 'new product' some or all of the information contained in the Product provided to Licensee under the terms of this License Agreement. In order to constitute a new product, the Licensee must demonstrate to the County that the Licensee shall add meaningful additional information to some or all of the data contained in the Product; shall reorganize some or all of the data contained in the Product to make it usable to the audience to whom the Licensee intends to provide the data; and/or shall extrapolate some of the data contained in the Product in order to formulate and present opinions as to the meaning of the data. A copy of the Licensee's explanation of how it intends to create a new product from the Product is attached to this License Agreement as Exhibit A. LICENSEE IS SPECIFICALLY PROHIBITTED FROM LICENSING, SUB - LICENSING, ASSIGNING, LEASING, PUBLISHING, TRANSFERRING, SELLING, PERMITTING ACCESS TO, DISTRIBUTING, ALLOWING INTERACTIVE ACCESS TO, OR OTHERWISE MAKING AVAILABLE THE PRODUCT OR ANY PORTION THEREOF T 0 ANY THIRD PARTY FOR ANY PURPOSE OTHER THAN AN APPROVED PURPOSE AS DEFINEDABOVE. Licensee agrees to notify its employees, agents, and any contractors of the restrictions contained in this License Agreement, and ensure their compliance with all restrictions. E. Licensee agrees to recognize and honor in perpetuity the copyrights, and other proprietary claims for survey control information, databases, collateral information, and Page 2 of 7 C:Documents and Settings \cwardyn. SOURCEGAS\Local Settings \Temporary Internet Files\OLKC6\DataExchangeAgreementUtility09_ Cument.doc products established or produced by County or the vendors furnishing said items to County. ARTICLE II Period of License Agreement A. This License Agreement shall commence upon signature hereunder and shall remain in force for a period of one year, and shall be renewed automatically for successive one year periods, unless sooner terminated by either party upon written notification, subject to the provisions of sub -paragraph C., below. B. Licensee is only granted the right to use the Product during the License Period. C. The provisions of this License Agreement regarding confidentiality and restrictions (Article I, Paragraph D) and the provisions of Articles IV, V, and VI shall survive termination of this License Agreement for any reason. ARTICLE III Provision of Information to County Licensee agrees to provide to County the following, without cost, as the sole consideration for its receipt of the digital GIS information referred to herein: 1. Any GPS information regarding section corners, quarters, or sixteenths located within Licensee's boundaries which Licensee may acquire. 2. Updated information regarding Licensee's boundaries and infrastructure. 3. Any additional digital GIS information for areas within the Licensee's boundaries which may be useful to the Weld GIS system as determined by the parties hereto. ARTICLE IV No Warranties The Product has been developed solely for internal use only by the County. Licensee expressly agrees that Licensee's use of the Product is at Licensee's sole risk and undertaking. Licensee understands and acknowledges that the GIS database and data in the Product is subject to constant change and that its accuracy and completeness cannot be and is not guaranteed. UNDER NO CIRCUMSTANCE SHALL THE PRODUCT BE USED FOR FINAL DESIGN PURPOSES. THE PRODUCT IS DISTRIBUTED ON AN "AS IS" BASIS. COUNTY MAKES NO WARRANTIES OR GUARANTEES, EITHER EXPRESSED OR IMPLIED, AS Page 3 of 7 Pages C \Documents and Settings\cwardyu. SOURCEGAS\Local Settings Temporary Internet Flies\OLKC6\DaiaExchangeAgreementUtility09Current doc TO THE COMPLETENESS, ACCURACY, OR CORRECTNESS OF SUCH PRODUCT, NOR ACCEPTS ANY LIABILITY, ARISING FROM ANY INCORRECT, INCOMPLETE OR MISLEADING INFORMATION CONTAINED THEREIN. THERE ARE NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, OF TITLE OR MERCHANTABILITY OR FITNESS OF SUCH PRODUCT FOR A PARTICULAR PURPOSE. COUNTY IS NOT RESPONSIBLE AND SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF USE OF THE PRODUCT OR INABILITY TO USE THE PRODUCT OR OUT OF ANY BREACH OF ANY WARRANTY. LICENSEE AGREES THAT THE PRODUCT SHALL BE USED AND RELIED UPON ONLY AT THE RISK OF LICENSEE. ARTICLE V Liabilities A. NOTWITHSTANDING THE PROVISIONS OF ARTICLE IV ABOVE, IF LIABILITY CAN BE IMPOSED ON COUNTY, LICENSEE AGREES THAT COUNTY'S AGGREGATE LIABILITY FOR ANY AND ALL LOSSES OR INJURIES TO LICENSEE, ARISING OUT OF ANYTHING TO BE DONE OR FURNISHED HEREUNDER, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NEVER EXCEED THE DOLLAR AMOUNT RECEIVED BY COUNTY UNDER THIS LICENSE AGREEMENT, AND LICENSEE COVENANTS AND PROMISES THAT IT WILL NOT SUE COUNTY FOR A GREATER AMOUNT. B. NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO WAIVE OR LIMIT ANY RIGHT OR DEFENSE AVAILABLE TO COUNTY UNDER THE "COLORADO GOVERNMENTAL IMMUNITY ACT" OR ANY SIMILAR OR RELATED STATUTORY PROVISION. ARTICLE VI Breach And Remedies A. In the event the Licensee breaches any of the terms, conditions, covenants, or License Agreements contained in this License Agreement, not only shall the license granted herein immediately cease, but the County shall thereupon have the right to any and all legal or equitable remedies, including but not limited to injunctive relief. B. Licensee acknowledges that use or disclosure of the Product in violation of this License Agreement may cause irreparable harm to the County. Page 4 of 7 CNocuments and Settingskwardyn. SOURCEGAS\Local Settings\ Temporary Internet Files\OLKC6\DataExchangeAgreementUtility09 Currem. doc ARTICLE VII Non -Assignability Neither this License Agreement nor the rights granted by it shall be assigned or transferred by the Licensee under any circumstance whatsoever. This restriction on assignments and transfers shall apply to assignments or transfers by operation of law, as well as by contract, merger, or consolidation. Any attempted assignment or transfer in derogation of this prohibition is void. ARTICLE VIII Governing Law The validity, interpretation, and construction of this License Agreement shall be governed by and construed in accordance with the laws of the State of Colorado and the United States of America. The exclusive jurisdiction and venue for any lawsuit between the parties arising out of this License Agreement shall be Weld County, Colorado, and/or the Federal District Court for the District of Colorado. ARTICLE IX Miscellaneous A. The Licensee will do or cause to be done all things necessary to preserve its rights and meet its obligations under this License Agreement. B. This License Agreement contains no financial commitments on the part of the County, and any financial commitments on the part of the County which become a part of this License Agreement are subject to appropriation by the Board of County Commissioners of Weld County, State of Colorado. If County funds for this License Agreement are not appropriated for each County fiscal year, the County may terminate this License Agreement upon thirty (30) days written notice to Licensee. The County's fiscal year is currently the calendar year. C. Captions used in this License Agreement are for convenience and are not used in the construction of this License Agreement. Page 5 of 7 Pages C 'Documents and Seuingskwardyn. SOURCEGAS\Local Settings\Temporary Internet Files`OLKC6\DaraExchangeAgreementRilliy09_Currem doe D. This License Agreement contains the entire License Agreement of the parties. No other representation whether oral or written may be relied upon by either party other than those that are expressly set forth herein. No agent, employee or other representative of either party is empowered to alter any of the terms herein unless done in writing and signed by an authorized representative of the parties. E. If for any reason a court of competent jurisdiction finds any provision of this License Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this License Agreement shall continue in full force and effect. F. Nothing contained herein shall imply an employer/employee relationship, a joint venture, partnership, or other association between County and Licensee. G. Any notice or communication given pursuant to this License Agreement shall be given in writing, either in person (deemed given when actually received) or by certified mail, return receipt requested (deemed given three (3) days after mailed). Notice shall be given to the parties at the following addresses: COUNTY: Weld County GIS Division 1401 N 17th Avenue Greeley, Colorado 80631 LICENSEE: Notice shall be sent to the address set forth in the first paragraph of this License Agreement. H. The undersigned warrants to the County that it has full power and authority to enter into, and where applicable, to act as the agent of the Licensee and be bound to perform its obligations under this License Agreement. This License Agreement contains the entire agreement and understanding between the parties to this License Agreement and supersedes any other agreements concerning the subject matter of this transaction, whether oral or written. It is expressly understood and agreed that the enforcement of the terms and conditions of this License Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties, and nothing contained in this License Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this License Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this License Agreement shall be deemed an incidental beneficiary only. Page 6 of 7 C:\Documents and Senings\cwardyn.SOURCEGAS\Local Servings\Temporary Internet Files\OLKC6\DstaExchangeAgreementUtility09_Current.doc IN WITNESS WHEREOF, said parties have hereto set their hands and seals. ATTEST: Weld County Clerk BY: Deputy CI:- to ATTEST: BY: itinbearli k2.Moare-- Subscribed and sworn to before me in the county of Colorado, this Rat - My Commission Expires 05111/2011 BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WELD, STATE OF COLORADO BY: William F. Garcia, Chair Board of County Commissioners of the County of Weld MAR 0 2 2009 LICENSEE: E.FP62Soti day of 12.6 20 per. , State of o)ary's of icial signature) 6:61///o // (Commission expiration date) Page 7 of 7 Pages C:\Documents and Settings`'cnardyn. SOURCEGAS\Local Settings\Temporary Internet Files`OLKCo'T)ataExchangeAgreementUtility09 Curren. doc &CO9-D Hello