HomeMy WebLinkAbout20080311.tiff MASTER SOFTWARE LICENSE & SUPPORT AGREEMENT
Weld County Government
This Master Software License and Support Agreement ("Agreement") is entered
into this 23 day of January, 2008 ("Contract Date") , by and between
Informatics Innovations, Inc (Contractor) , and the Board of County
Commissioners of Weld County, (Customer)
Contractor agrees to Furnish Customer and Customer agrees to accept, in
accordance with the terms and conditions of this Agreement, the use of the
software identified below.
Introduction
The terms of this contract are specified in the terms of this document and in
Exhibits A and B which an integral part of this agreement and which are
specifically made a part of this contract.
Exhibit A (RFP) sets forth Customer' s Request for Proposal - OR
Customer' s description of its expectations of the performance of the software
being purchased, the application of the software, the software and hardware
environment in which the software is expected to operate, and the number of
users of the software.
Exhibit B (Vendor Proposal) sets forth the Contractor' s response to
Customer' s Request for Proposal - OR Contractor' s response to Customer' s
description of its expectations of the performance of the software being
purchased, the application of the software, the software and hardware
environment in which the software is expected to operate, the number of users
of the software, EMUA, EULA & EUSA (Appendix C of Vendor' s Proposal) .
Contractor' s Statement of Work, which includes approval of milestones set by
Customer which reflect Customer' s obligation to pay Contractor a specified
amount of the contract price as noted under Section 3. 0 Deliverables &
Section 4 .0 Cost Estimate related to Deliverables.
**IN THE EVENT OF A CONFLICT OR AMBIGUITY BETWEEN THE TERMS OF THIS MASTER
AGREEMENT AND THE TERMS OF ANY PROVISIONS CONTAINED IN ANY OF THE APPENDICES
TO EXHIBIT B, THE PROVISIONS OF THIS MASTER AGREEMENT SHALL CONTROL. **
1. DEFINITIONS
1.1 COMPUTER means a machine or system, which uses logical devices
("central processing units") to process information, such as a multiprocessor
computer system or a workstation.
1.2 DESIGNATED COMPUTER(S) means specific Computer (s) , including
replacements, modifications, upgrades and additions thereto, upon which the
application software is compiled or installed and executed.
1.3 SOFTWARE DOCUMENTATION means the standard user documentation published
or provided on-line by Contractor, or distributed by Contractor under a third
party license, describing the use of the Software, including any tutorial
presentation of the capabilities of the Run-Time Versions and may include
technical documentation which describes the design of the Software. Software
Documentation may be released in an electronic media format. Notwithstanding
the foregoing, Software Documentation does not include any 3rd party software
documentation.
1.4 PRODUCT UPDATE means a change or new release of the Software or
Software Documentation designed to correct Software Problem(s) .
2008-0311
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MASTER SOFTWARE LICENSE & SUPPORT AGREEMENT
Weld County Government
1.5 PRODUCT UPGRADE means a change or new release of the Software or
Software Documentation designed to enhance the features of the licensed
Software version or otherwise improve the functionality of the licensed
Software version.
1.6 RUN-TIME VERSION means a program that is used to execute the Software
and other utilities that are a part of the Software, but which does not allow
a User to change the Software or to create new and different Software
features.
1.7 SOFTWARE means all of the computer software program versions listed in
Exhibit B, are considered a part of the Contractor' s "deliverables" and shall
include all updates, enhancements, modifications, or upgrades provided under
the terms of this Agreement or a related support agreement. Notwithstanding
the foregoing, Software does not include any third party software, unless set
forth on Exhibit B.
1.8 SOFTWARE PROBLEM(S) means defective Software distribution media and/or
a failure of the Software to function substantially in accordance with the
Software Documentation.
1.9 SOURCE CODE means a compliable copy of the Software which allows the
Software installer to compile the Software into a Run-Time Version using the
appropriate Development System; some portions of the Source Code may already
be compiled by Contractor and provided in an executable, Run-Time or object
code version.
1.10 USER means the unique combination of one log-in on one software display
device.
1.11 PUBLIC ACCESS MODULE means a unique subset of Software provided for the
purpose of providing third parties read-only access to Customer data.
1.12 EXECUTION DATE means the date, after installation of the Software, upon
which Customer (in writing) , accepts the Software.
1.13 MATERIAL BREACH means the failure to achieve a milestone as set forth
in Exhibit B, Section 3. 0, of Vendor Deliverables.
1.14 SEVERE SYSTEM MALFUNCTION means the failure of the Software to perform
as represented by Contractor in Exhibit B.
1.15 ACCEPTANCE means Customer' s willing receipt of the products, services
and Software offered by Contractor, and Customers agreement to pay for said
products, services and Software. Customer shall always evidence Acceptance by
a written statement, and not by payment alone.
2. LICENSES
2.1 Grant of License. Contractor grants to Customer the non-exclusive and
non-transferable right to have the Users execute the Software on the
Designated Computers, and to use the associated Software Documentation only
for Customer' s internal business purposes and only with Customer' s data,
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Weld County Government
subject to the terms and conditions of this Agreement and in consideration of
payment of the agreed upon license fees.
2.2 Rights of Customer. Customer may access the Software lawfully licensed
to Customer on any configuration of computers or display devices connected to
the Designated Computer (s) . Customer may transfer the Software to any
electronic storage device connected to the Designated Computer(s) , provided
Customer keeps the original solely for backup or archival purposes. Customer
has the right to approve all personnel supplied by Contractor to perform
services rendered under this Agreement.
2.3 Acceptance of Software. For each Software product licensed under this
Agreement, Customer shall have a thirty (30) day "Acceptance Period"
beginning on the Execution Date, or if the Software is provided with Software
modifications, beginning on the third day following the installation of the
Software and/or Software modifications. During the Acceptance Period,
Customer may cancel the license by giving written notice to Contractor and
returning the Software in accordance with Section 4 .2. If Customer elects to
accept the license, the license will be accepted by Customer at the end of
the Acceptance Period, upon Customer' s execution of a written acceptance.
Should Customer elect to cancel this Agreement under the terms of this
Section 2.3, Customer shall pay Contractor for all Implementation services
provided through the accomplishment of the most recent milestone payment
date, so that Contractor will be paid for its accomplishment of the steps
taken to reach that milestone. The Statement of Work which is included hereto
and made a part hereof as Exhibit B, Section 3.0 and Section 4 .0, sets forth
all such steps, milestones and payment obligations.
2.4 Backup Copy. Customer may make backup copies of the Software and
of any portions thereof, as well as any portions thereof which are modified
or merged with other programs in accordance with this Agreement. All such
backup copies shall also be subject to the terms and conditions of this
Agreement. Customer agrees to maintain an accurate record of the location of
the backup copies at all times.
3. PROPRIETARY RIGHTS AND CONFIDENTIALITY
3.1 Ownership. All title and rights of ownership in the Software and
Software Documentation remain with Contractor and/or its suppliers and are
protected by copyright, patent, and/or trade secret laws. Customer agrees to
take all reasonable steps to protect Contractor' s and its suppliers'
proprietary rights in the Software and Software Documentation including, but
not limited to, the proper display of copyright, trademark, trade secret, and
other proprietary notices on any copies of the Software. Customer must
reproduce and include any copyright, trade secret, trademark, or proprietary
data notices, and other legends and logos on the backup copies. Customer
agrees to assist Contractor in the defense of Contractor' s and its suppliers'
ownership of the Software and Software Documentation against all claims,
liens and legal processes of creditors of Customer, and further agrees, to
the extent it is able in the normal course of business, to keep the Software
and Software Documentation free and clear of all such claims, liens, and
processes. However, the parties agree that Customer shall have all rights of
ownership of the Software, once it has paid the contracted price for said
Software, except the right to re-sell said Software.
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3.2 Confidentiality. As Customer is a public entity, Contractor is aware
that this Agreement and all of its terms and conditions constitute a public
record and that Customer must disclose this Agreement and its terms and
conditions to members of the public who wish to see it. In addition, Customer
may disclose the Software to consultants and other third parties retained to
work with the Software.
4. TERM AND TERMINATION
4.1 Term. The licenses granted under this Agreement shall commence upon the
Customer' s Acceptance of the Software and shall continue unless Customer does
not renew in accordance with the provisions of this Agreement. However, both
of the parties to this Agreement understand and agree that the laws of the
State of Colorado prohibit Customer from entering into Agreements which bind
Customer for periods longer than one year. Therefore, on the anniversary date
of this Agreement, Customer shall notify Contractor if it wishes to renew
this contract.
4.2 Termination. Customer may terminate this Agreement by notifying
Contractor in writing of its intention to terminate. If Customer terminates
this Agreement as a result of Contractor' s failure to attain a milestone as
set forth in Exhibit B within sixty (60) days after notice from Customer that
Contractor has failed to meet the milestone as anticipated, Customer shall be
relieved from all further obligations under this Agreement.
Contractor may terminate this Agreement if Customer fails to pay any license
fees owing and which are more than thirty (30) days past due. Contractor may
also terminate the Agreement if Customer breaches any agreement or obligation
in this Agreement and fails to remedy such breach or demonstrate a good faith
effort to remedy such breach within thirty (30) days after receiving written
notice of such material breach from Contractor. HOWEVER, as Contractor has no
rights in Customer' s continued subscription to Contractor' s services under
the Support, Update and Upgrade provisions as set out in Section 9.3 and
Exhibit B, Appendix C of this Agreement, future action by Customer to refuse
to accept such services shall not give rise to any right of Contractor under
this Agreement.
Upon termination, both parties shall be relieved from any further obligations
to one another under this Agreement.
5. LIMITED WARRANTY.
5.1 Limited Warranty. Contractor warrants that after the delivery of the
Software and Software modifications, if any, to Customer, the latest
unmodified version of the Software released by Contractor shall substantially
perform in accordance with the Software Documentation. A copy of Contractor' s
proposal, and of Customer' s Requirements is attached hereto and made a part
hereof as Exhibits A and B respectively, and represent both Customer' s and
Contractor' s expectations with regard to the operation of the Software.
5.2 Remedies. Contractor' s entire liability and Customer' s exclusive
remedy shall be for Contractor, at Customer' s option, to either: (a) replace
any defective media which prevents the Software from satisfying the limited
warranty described above provided such defective media is returned to
Contractor; or (b) attempt to correct any errors which Customer finds in the
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Software during this warranty period and which prevent the Software from
substantially performing as described in the Software Documentation. Any
replacement Software will be warranted for the remainder of the original
warranty period or for thirty (30) days, whichever is longer.
5.3 Right to License. Contractor warrants that it is the owner of the
Software and/or has the right to license Software to Customer.
5.4 Limitations of Warranty. The above warranty is null and void if
failure of the Software has resulted from accident, abuse, or misapplication;
including unanticipated alteration or modification of the Software BY
Customer. The above warranty applies only to Software Problems, which are
apparent in the unmodified, standard Software, which is not merged with other
software. Contractor shall not be required to correct errors during the above
described warranty period attributable to: equipment malfunction; products
other than the Software; use of the Software in conflict with or
contravention of the Software Documentation or the terms of this Agreement;
or accident, neglect, misuse, or abuse of the Software.
6. INDEMNIFICATION
6.1 Contractor's Indemnification. Contractor shall indemnify, defend and
hold harmless Customer against any action to the extent such action is based
on a claim that Customer' s use of the Software or Software Documentation or
any part thereof, under this Agreement, infringes a valid, enforceable United
States patent or copyright, or misappropriated a trade secret, and Contractor
shall pay all damages and costs, (including reasonable attorneys' fees) ,
awarded or agreed to in a settlement by Contractor in respect of such action;
provided that Contractor is given notice of such claim within thirty (30)
calendar days of the dated Customer knows of such a claim. Contractor shall
control the defense in any such action and, at its discretion, may enter into
a stipulation of discontinuance and settlement thereof. Customer shall
cooperate with Contractor in any such defense and shall make available to
Contractor all those persons, documents and things required by Contractor in
the defense of any such action. Reasonable out-of-pocket expenses incurred by
Customer will be reimbursed by Contractor. Customer, may, at its expense,
assist in such defense.
6.2 Remedies. If, in an action described in Section 6. 1 above, the
Software is held to constitute an infringement or misappropriation, or the
use, demonstration, distribution, marketing, or sublicensing thereof is
enjoined or restricted, Contractor shall, at its option, either procure for
Customer the right to continue using the Software, or modify the Software to
permit Customer to exercise its rights hereunder, or if the foregoing options
are not available, terminate the Agreement and promptly refund to Customer
all license fees paid by Customer to Contractor for the infringing Software
amortized over a five (5) year period from the date of initial delivery,
(i.e. , a refund pro-rated on a monthly bases over a sixty (60) month term) .
6.3 Limitations of Indemnification. The foregoing indemnity shall not
apply to any infringement misappropriation if such infringement or
misappropriation resulted from Customer' s or any of its Users' use of the
Software: (a) in an operating environment other than that described in the
Software Documentation or under this Agreement; (b) in conjunction with an
enhancement not created or owned by Contractor; or (c) in conjunction with
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Weld County Government
other software not created or owned by Contractor. The foregoing states the
entire obligation of Contractor with respect to the infringement of patents
and copyrights, and misappropriation of trade secrets.
7. SUPPORT
7.1 Support Fees for Annual Maintenance. Customer agrees to pay the
current annual Support Fees as detailed in Exhibit B, Section 4 .0; Annual
Maintenance and Support Services. Annual fees are subject to the following
imitations: (a) the first year' s annual fee cannot exceed fifteen percent
(15%) of the purchase price of the Software; (b) after the first year, each
year' s annual maintenance is subject to a maximum increase of five percent
(5%) .
7.2 Informatics Innovations, Inc Support Specialist and System
Administrator. Customer shall designate both a System Administrator and an
Informatics Innovations, Inc Specialist, who shall act as the primary contact
between Customer and Contractor.
7.3 Customer's Responsibilities. Customer agrees to assist and cooperate
with Contractor as reasonably required by Contractor, in the resolution of
Software Problems. Such assistance will facilitate quicker and more effective
problem resolution by Contractor, and may include:
7.3.1 Consultation with the System Administrator and Information Innovation,
Inc Software Support Specialist.
7.3.2 Providing documentation of the Software Problem(s) , test data, and
copies of the programs being used when the Software Problem(s) become
apparent.
7.4 Support Services. The Support Services generally include resolution of
Software Problem(s) , support via electronic mail, ("E-mail") , and telephone,
upgrades and updates of the Software. Updates to existing procedures in the
Software as required by legislative action, described in Exhibit B; Appendix
C; EUMA, included in the Support Services.
Installation, training, and modification of the Software are services not
included as support services, and must be contracted separately.
7.5 Email and Telephone Support. Contractor will provide assistance in
identifying, confirming and providing a "workaround" for suspected Software
Problem(s) in the standard, unmodified code of the Software. Contractor may
require documentation of the Software Problem, test data, and copies of
programs being used before confirming and resolving Software Problem(s) . E-
mail can and should be used to communicate support requests.
7.6 Direct User Contact. Contractor Personnel may use the remote access
link to access Customer' s Computer to better analyze suspected Software
Problem(s) and produce a solution or "workaround" to Software Problem(s) .
Contractor personnel may also directly communicate with Customer regarding
the suspected Software Problem(s) using any form of telecommunications.
7.7 Site Visits. In the event that: (a) data is corrupted, returned results
are incorrect, or there is a severe feature malfunction without a
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Weld County Government
"workaround"; (b) the Software Problem seriously disrupts Customer' s primary
business operations; and (c) Customer and Contractor have made every
reasonable attempt to correct the Software Problem, then Contractor agrees to
use it best reasonable efforts to resolve the Software Problem, first
remotely through the remote access connection or otherwise provided Customer
has provided Contractor adequate remote access to Customer' s system, and then
on-site, if necessary to resolve the Software Problem(s) at Contractor' s
option.
7.8 Support Hours. Contractor support services, which include direct
telephone services, will be available to Customer as noted in Exhibit B,
Appendix C, EUMA (Operator Support Services)
7.9 Product Updates and Upgrades. Upon payment of Customer' s annual
Support Fee (detailed in Exhibit B, which attached hereto and made a part
hereof) , Contractor agrees to provide Customer with the Product Updates and
Product Upgrades for licensed Software Produced by Contractor.
7.10 Language. Telephone and E-mail support will be provided in English,
unless otherwise agreed upon in writing by both parties.
7.11 Training. Training will be provided by Contractor following final
Acceptance by Customer. Training services are included in the price paid by
Customer for the Software.
8. GENERAL
8.1 Waiver, Amendment or Modification. Any waiver, amendment, or
modification of any of the provisions of this Agreement or of any right,
power or remedy hereunder shall not be effective unless made in writing and
signed by the parties. No failure or delay by either party in exercising any
right, power or remedy with respect to any of its rights hereunder shall
operate as a waiver thereof in the future.
8.2 Governing Law. This Agreement shall be governed by the laws of the
State of Colorado, and shall inure to the benefit of Contractor, its
successors, administrators, heirs, and assigns. The United Nations Convention
on the International Sale of Goods shall not apply to this Agreement.
8.3 Choice of Forum. The parties agree that Weld County, Colorado shall be
the proper forum for any action, including mediation and arbitration brought
under this Agreement.
8.4 Attorney Fees. In the event of legal action, including arbitration
is brought to enforce any provision of this Agreement, each party shall be
responsible for the payment of its own legal costs, including attorney fees.
8.5 Limitation on Actions. No actions, regardless of form, arising from
the transactions under this Agreement, may be brought by an aggrieved party
hereto more than two (2) years after the facts creating the cause of action
are known to said party.
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8.6 Severability. If any term, provision, or part of this Agreement is
to any extent held invalid, void, or unenforceable by a court of competent
jurisdiction, the remainder of the Agreement shall not be impaired or
affected thereby, and each remaining term, provision, or part shall remain in
full force and effect.
8.7 Survival. The terms, conditions and warranties contained in this
Agreement that by their sense and context are intended to survive the
termination of this Agreement, shall so survive.
8.8 Notice. All notices or other communications made by one party to
the other concerning the terms and conditions of this contract shall be
deemed delivered under the following circumstances:
(a) personal service by a reputable courier service requiring signature
for receipt; or
(b) five (5) days following delivery to the United States Postal
Service, postage prepaid addressed to a party at the address set forth in
this contract; or
(c) electronic transmission via email at the address set forth below,
where a receipt or acknowledgment is required by the sending party; or
(d) transmission via facsimile, at the number set forth below, where a
receipt or acknowledgment is required by the sending party.
Either party may change its notice address (es) by written notice to the
other.
Contractor:
Informatics Innovations, Inc.
5665 Atlanta Highway 9,
Attn: Linda Roll, President
Suite 103-118
Alpharetta, GA 30004
E-mail: Linda@infovations.com
Facsimile: 706-867-8857
Customer:
Weld County Government
Environmental Health Lab Dept
Attn: Trevor Jiricek, Director
1555 N. 17th Avenue
Greeley, Co 80631
E-mail: tjiricek@co.weld.co.us
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MASTER SOFTWARE LICENSE & SUPPORT AGREEMENT
Weld County Government
IS Contact:
ACS/Weld County Information Service Dept
Attn: Sheila Batson, IS Consultant
1401 N. 17th Avenue
Greeley, Co 80631
E-mail: sbatson@co.weld.co.us
8.9 Force Majeure. Neither party shall be in default nor liable for any
failure in performance or loss or damage under this Agreement due to any
cause beyond its control.
8.10 Taxes. Customer, as a governmental entity, is exempt from sales,
use and other taxes or similar governmental charges or duties which might be
incurred in connection with the exercise of the license (s) and rights granted
herein to Customer, and therefore shall not be responsible for the payment of
any taxes. Contractor shall be responsible for the payment of any sales, use
or other taxes incurred when it purchase products, materials or services in
the fulfillment of its obligations under this contract. Contractor is also
responsible for the payment of all taxes or charges based on the income of
the Contractor.
8.11 Acknowledgment. Customer and Contractor acknowledge that each has read
this Agreement, understands it and agrees to be bound by its terms. Both
parties further agree that this Agreement, with the attached Exhibits A and
B, is the complete and exclusive statement of agreement between the parties
and supersedes all proposals or prior agreements, oral or written, and any
other communications between the parties relating to the subject matter of
this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first stated above.
INFORMATICS INNOVATIONS, INC.
Chair, Board of County Commissioners
(Ad (ft( JAN 2 8 2008
By: LINDA ROLL, President
��`. IF t .' .G TO BOARD OF COUNTY
��� 'M. ONER SIGNATURES ONLY
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ATTEST: � D, a political subdivision Weld
Cou Clerk to the Board y �' 4 • * ORADO:
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