HomeMy WebLinkAbout20052895.tiff SlideManager'
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SLIDEMANAGER CUSTOMER HOSTED ORDER FORM
Name of Licensee: Weld County Government Contact Name:Julie Jordan
Address:915 Tenth Street
P.O.Box 758 Phone: (970)356 4000 x4874
Greeley.CO 80632
State/Country of Incorporation: Unknown Fax: (970)352 0242
E-Mail:jjordan@co.weld.co.us
Effective Date of this Order:9/23/2005
I. LICENSE TYPE
®Named ❑Concurrent
II. PRODUCTS AND SERVICES
DESCRIPTION UNITS UNIT PRICE PRICE
LICENSES
Named SlideManager User Licenses 4 $500.00 $2,000.00
SQL Server Licenses RQD RQD RQD
PROFESSIONAL SERVICES
Server Setup 1 $1000.00 $1,000.00
Training(per day) 1 $1,440.00 $1,440.00
MAINTENANCE
Maintenance 18% $360.00
M. HOSTING MODEL
® Customer Hosted
N. PAYMENT: Total Products and Services fees are$4,800.00. 50%$2,400.00 is due upon signing and 50%$2,400.00 is due 10
days from shipment of Software.
Media Marketing,Inc. 6859 N.Foothills Hwy. Boulder,CO 80302
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DI- -DS-- &IDs-(9895
WELD COUNTY GOVERNMENT: MEDIA MARKETING,INC.
Signature: Signature: IT
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Printed: William H. Jerke Printed: SIIIAMA 0 O7IM UM
Title: Chair, Board of County Commissioners Title: C P.O
Date: SEP 2 8 2005 Date: (°t t l°S
1. LICENSE GRANT AND OTHER RIGHTS. 2. DELIVERY, ACCEPTANCE AND INSTALLATION.
1.1 Software License Grant. Subject to the terms and Media Marketing will deliver the Software to Licensee on a
conditions of this Agreement, Media Marketing grants to CD-ROM or via http download, as otherwise mutually agreed.
Licensee, a non-exclusive, non-transferable, license to: (a) run Licensee is responsible for installing the Software in
the Software at the Site and access it by the Authorized Users, accordance with the Documentation and the installation
solely for Licensee's internal business purposes during the instructions provided by Media Marketing.
Term, and in accordance with the Documentation and the 3. OPERATION AND HOSTING. Licensee shall be solely
limitations as set forth herein; and (b) use and distribute the responsible for hosting the Software and obtaining all other
Documentation to those individual employee's or software and hardware required for the use of the Software.
representatives of Licensee as necessary to operate the 4. SUPPORT SERVICES. Subject to Licensee's payment
Software. Licensee may only make one reproduction of the of all of the applicable Support Fees, Media Marketing shall
Software for archival and backup purposes, which copy shall provide Licensee with those Support Services as stated above
include Media Marketing's copyright and other proprietary and defined in License Agreement.
notices.
5. TRAINING. Subject to Licensee's payment of all of
1.2 Restrictions On Use. Licensee acknowledges that the applicable Training Fees, Media Marketing shall provide
the Software and its structure, organization, and Source Code Licensee with training as stated above and defined in License
constitute valuable trade secrets of Media Marketing and its Agreement.
suppliers. Except as expressly permitted by this Agreement, 6. CONSULTING SERVICES. Subject to Licensee's
Licensee agrees that Licensee shall not, and shall not permit
any third party, to (a) modify, adapt, alter, translate, or create payment of all of the applicable Consulting Fees, Media
derivative works from the Software or the Documentation; (b) Marketing shall provide Licensee with strategic and
implementation guidance and Software "set up" consulting as
merge the Software with other software other than through
Media Marketing published interfaces; (c) sublicense, stated above and defined in License Agreement.
distribute, sell, use for service bureau use, lease, rent, loan, or 7. Referenced License Agreement. The terms and
otherwise transfer the Software or the Documentation to any conditions of the License Agreement or prior Order Form, as
third party; (d) reverse engineer, decompile, disassemble, or the case may be, referenced by this Order Form shall apply to
otherwise attempt to derive the Source Code for the Software, this Order Form. If any provision of the License Agreement
except and only to the extent that such activity is expressly or prior Order Form, as the case may be, shall contradict any
permitted by applicable law notwithstanding this limitation; provision of this Order Form, the provisions of this Order
(e) remove, alter, cover or obfuscate any copyright notices or Form shall apply with respect to the Licensed Program(s)
other proprietary rights notices included in the Software; (f) described herein.
otherwise use or copy the Software except as expressly S. Notices. All notices, consents, and approvals under
permitted under the License Agreement. Licensee shall this Work Order,License Agreement, and Statements of Work
immediately notify Media Marketing of any unauthorized use must be delivered in writing to the other party at the address
or disclosure of the Software. set forth on the cover page of the Work Order.
1.3 Proprietary Rights. The Software and all
worldwide Intellectual Property Rights therein, are the
exclusive property of Media Marketing and its suppliers. All
rights in and to the Software not expressly granted to Licensee
in this Agreement are reserved by Media Marketing and its
suppliers. Licensee will not remove, alter, or obscure any
proprietary notices (including copyright notices) of Media
Marketing or its suppliers on the Software.
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MEDIA MARKETING,INC.STANDARD SLIDEMANAGER SELF-HOSTED LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT("Agreement")is made by and between Media Marketing,Inc.,with offices at 6859 North
Foothills Hwy, Boulder,Colorado 80302("Media Marketing")and the party identified on executed SlideManager Order Form
("Licensee").
TERMS AND CONDITIONS
1. DEFINITIONS. As used in the Agreement and any Exhibit 1.17 "Overage Charges" means those additional fecs
hereto: Licensee shall be responsible for if the numbers of concurrent
1.1 "Authorized Users" means those Users who are authorized user licenses are exceeded at any given time.
to access the Software. 1.18 "Hosting"means(1) providing the server on which an
1.2 "Documentation"means the user's and training manuals, in application runs, and (2) providing the Internet connection for
any format,provided to Licensee along with the Software. access to the application by those individuals/entities that are
1.3 "Fees" means, collectively, the License Fees and the authorized to access it..
Maintenance Fees. 1.19 "Order Form" refers to the executed Order Form to which
1.4 "Intellectual Property Rights" means all copyrights, this Agreement's terms and conditioned are referenced.
trademarks, service marks, trade secrets, patents, patent applications, 2. LICENSE GRANT AND OTHER RIGHTS.
moral rights,contract rights and other proprietary rights.
2.1 Software License Grant. Subject to the terms and
1.5 "License Fees" means the applicable fees for the license of conditions of this Agreement, Media Marketing grants to Licensee a
the Software. The License Fees in effect as of the Effective Date are non-exclusive, non-transferable,license to: (a) run the Software at the
set forth on executed SlideManager Order Form. Site and access it by the Authorized Users, solely for Licensee's
1.6 "Object Code"means any compiled,assembled,or machine internal business purposes during the Term (as set forth on executed
executable version of the Software,or any part thereof. SlideManager Order Form), and in accordance with the Documentation
and the limitations as set forth herein; and (b) use and distribute the
1.7 "Professional Services" means those consulting and custom
services, if any, to be provided by Media Marketing to Licensee Documentation those individual employee's or representatives of
pursuant to Section 7 below. Licensee as necessary to operate the Software. Licensee may only
make one reproduction of the Software for archival and backup
1.8 "Site" means the location(s) where the Software may reside purposes, which copy shall include Media Marketing's copyright and
as indicated in "Address" section on executed SlideManager Order other proprietary notices.
Form. 2.2 Restrictions on Use. Licensee acknowledges that the
1.9 "Software" means the software programs or software Software and its structure, organization, and Source Code constitute
program modules stated on executed SlideManager Order Form, in valuable trade secrets of Media Marketing and its suppliers. Except as
object code form, and any modified, updated or enhanced versions of expressly permitted by this Agreement, Licensee agrees that Licensee
such programs or modules that Media Marketing may provide to shall not, and shall not permit any third party, to (a) modify, adapt,
Licensee pursuant to the Maintenance Services, as well as the alter, translate, or create derivative works from the Software or the
accompanying Documentation. Documentation;(b)merge the Software with other software other than
1.10 "Source Code" means the human-readable version of a through Media Marketing published interfaces; (c) sublicense,
software program that can be compiled into executable code. distribute,sell,use for service bureau use,lease,rent,loan,or otherwise
transfer the Software or the Documentation to any third party; (d)
1.11 "Maintenance Fees" means the applicable annual fees for reverse engineer, decompile, disassemble, or otherwise attempt to
the Maintenance Services. The Maintenance Fees in effect as of the derive the Source Code for the Software,except and only to the extent
Effective Date are set forth on executed SlideManager Order Form. that such activity is expressly permitted by applicable law
1.12 "Maintenance Services" means those maintenance services notwithstanding this limitation; (e) remove, alter, cover or obfuscate
to be provided by Media Marketing to Licensee with respect to the any copyright notices or other proprietary rights notices included in the
Software pursuant to Section 5 below. Software; (0 allow more than the authorized number of Authorized
1.13 "User" means an individual employee of Licensee who Users to access the Software at any time; or(g)otherwise use or copy
the Software except as expressly permitted under Section 2.1. Licensee
accesses the Software in accordance with the terms of this Agreement
shall immediately notify Media Marketing of any unauthorized use or
1.14 "Concurrent Users" means the greatest number of disclosure of the Software.
Users who access the Software at any single point in time. 2.3 Proprietary Rights. The Software and all worldwide
1.15 "Named Users" means the number of computers Intellectual Property Rights therein, are the exclusive property of
licensed, and specified in executed SlideManager Order Form, Media Marketing and its suppliers. All rights in and to the Software
to install Software under the terms of this Agreement. not expressly granted to Licensee in this Agreement are reserved by
Media Marketing and its suppliers. Licensee will not remove,alter,or
1.16 "Perpetual" means "Users" have perpetual rights to
obscure any proprietary notices(including copyright notices)of Media
use Software for as long as Licensee is in material compliance Marketing or its suppliers on the Software.
with the terms of the Agreement.
3. DELIVERY, ACCEPTANCE AND INSTALLATION. Media
Marketing will deliver the Software to Licensee on a CD-ROM or via
http download,or as otherwise mutually agreed. Without limiting the
warranties in Section 9 below, the Software will be deemed accepted necessary so that Media Marketing can determine the number of
upon delivery. Licensee is responsible for installing the Software in Authorized Users accessing the Software during each calendar month.
accordance with the Documentation and the installation instructions At all times during the Term, and for at least three(3)years after any
provided by Media Marketing. termination of this Agreement, Licensee will maintain complete and
4. OPERATION AND HOSTING. Licensee shall be solely accurate records relating to its use of the Software.
responsible for hosting the Software and obtaining all other software 8.7 Audit Rights. Media Marketing will have the right, during
and hardware required for the use of the Software as set forth on normal business hours and upon at least five (5) business days prior
executed SlideManager Order Form. notice, to have a reputable independent audit firm selected by Media
5. MAINTENANCE SERVICES. Subject to Licensee's payment of Marketing, which is subject to reasonable confidentiality obligations,
all of the applicable Maintenance Fees,Media Marketing shall provide audit Licensee's records relating to Licensee's activities pursuant to
Licensee with those Maintenance Services described in Exhibit C this Agreement in order to verify that Licensee has complied with the
attached hereto. Media Marketing will provide the Maintenance terms of this Agreement. The audit will be conducted at Media
Services only for the most current release and the immediately Marketing's expense, unless the audit reveals that Licensee has
preceding major release of the Software. Media Marketing may elect underpaid the amounts owed to Media Marketing by five percent(5%)
to cease supporting a platform upon twelve (12) months notice to or more in any month, in which case Licensee will reimburse Media
Licensee. Licensee will provide Media Marketing with remote access Marketing for all reasonable costs and expenses incurred by Media
to the Software for the purpose of providing Maintenance Services. Marketing in connection with such audit Licensee will promptly pay
to Media Marketing any amounts shown by any such audit to be owing
6. TRAINING. Media Marketing will provide Licensee with plus interest as provided in Section 8.4 above. Such audits will be
training in accordance with the fees set forth on executed SlideManager conducted no more than once in any six(6)month period.
Order Form..Media Marketing will conduct training sessions at Media
Marketing's facilities in Boulder, Colorado,or at such other facility as 9• WARRANTIES
may be mutually agreed upon by the parties. If training is conducted at 9.1 Performance. For a period of sixty (60)days after the date
any facility other than Media Marketing's facility, Licensee shall pay of delivery of the Software(the"Software Warranty Period"),Media
all reasonable costs incurred by Media Marketing's instructor(s) for Marketing warrants that the Software, when used as permitted by
travel,lodging and meal expenses in connection with such training Media Marketing and in accordance with the instructions in the
7. PROFESSIONAL SERVICES. Media Marketing will provide Documentation (including use on a computer hardware and operating
professional services, if applicable, in accordance with the terms set system platform supported by Media Marketing), will operate
forth in Exhibit D and for the fees set forth on executed SlideManager substantially as described in the Documentation. Media Marketing
Order Form. Media Marketing may perform professional services at does not warrant the Licensee's use of the Software will be error-free
Media Marketing's facilities in Boulder, Colorado, or at such other or uninterrupted. Media Marketing will, at its own expense and as its
facility as may be mutually agreed upon by the parties. If performed at sole obligation and Licensee's exclusive remedy for any breach of this
any facility other than Media Marketing's facility, Licensee shall pay Warranty, use commercially reasonable efforts to correct any
all reasonable costs incurred by Media Marketing's instructor(s) for reproducible error in the Software reported to Media Marketing by
travel,lodging and meal expenses in connection with such professional Licensee in writing during the Software Warranty Period. If Media
Marketing determines that it is unable to correct the error or replace the
services.
Software, Media Marketing will refund to Licensee all License Fees
8. FEES AND PAYMENT. actually paid,in which case this Agreement and Licensee's right to use
8.1 License Fees. Licensee will pay to Media Marketing the the Software will be terminated. Any such error correction provided to
License Fees in accordance with the terms set forth on executed Licensee will not extend the original Software Warranty Period.
SlideManager Order Form. All License Fees are non-refundable. 9.2 Disclaimers. THE EXPRESS WARRANTIES IN
8.2 Maintenance Fees. Licensee will pay to Media Marketing SECTION 9.1 ARE IN LIEU OF ALL OTHER WARRANTIES,
the Maintenance Fees in accordance with the terms set forth on EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE
executed SlideManager Order Form and the provisions stated in Exhibit SOFTWARE, SERVICES AND MAINTENANCE SERVICES,
C. INCLUDING ANY WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-
8.3 Training and Professional Services Fees. To the extent
applicable, Licensee will pay to Media Marketing the training and INFRINGEMENT OF THIRD PARTY RIGHTS. LICENSEE
ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES
professional services fees in accordance with the terms set forth on
OTHER THAN THE EXPRESS WARRANTIES PROVIDED
executed SlideManager Order Form and the provisions stated in
HEREIN AND THAT NO WARRANTIES ARE MADE HEREIN BY
Exhibit D.
ANY OF MEDIA MARKETING'S SUPPLIERS.
8.4 Payment Terms. Licensee will pay Media Marketing all 10. INFRINGEMENT CLAIMS. Media Marketing will defend at its
amounts due under this Agreement as set forth on executed own expense any third party action against Licensee to the extent it is
SlideManager Order Form. All payments must be made in U.S. based upon a claim that the Software infringes any U.S.patents or any
dollars. Any amounts not paid when due will accrue interest at one and copyrights or misappropriates any trade secrets of a third party, and
one-half percent(11/2%) per month or the maximum rate permitted by Media Marketing will pay those costs and damages finally awarded
applicable law;whichever is less,from the due date until paid. against Licensee in any such action that are specifically attributable to
8.5 Taxes. Fees exclude, and Licensee will make all payments such claim or those costs and damages agreed to in a monetary
of the Fees to Media Marketing free and clear of, all applicable sales, settlement of such action. The foregoing obligations are conditioned on
use,and other taxes and all applicable export and import fees,customs Licensee (a) notifying Media Marketing promptly in writing of such
duties and similar charges. Licensee will be responsible for, and will action, (b)giving Media Marketing sole control of the defense thereof
indemnify and hold harmless Media Marketing from, payment of all and any related settlement negotiations, and (c) cooperating and, at
such taxes(other than taxes based on Media Marketing's net income), Media Marketing's request and expense,assisting in such defense. If
fees,duties,and charges,and any related penalties and interest, arising the Software becomes, or in Media Marketing's opinion is likely to
from the payment of the Fees or the delivery or license of the Software become,the subject of an infringement claim,Media Marketing may,at
to Licensee. its option and expense(i) procure for Licensee the right to continue
8.6 Records and Reports. During the Term, Licensee will using the Software, (ii) replace or modify the Software so that it
provide Media Marketing with such remote access to the Software as becomes non-infringing,or(iii)accept returnof the Software,terminate
this Agreement,in whole or in part,as appropriate,upon written notice Disclosing Party; (b) was disclosed to the Receiving Party by a third
to Licensee, and refund to Licensee a pro-rated portion of the License party who had the right to make such disclosure without any
Fee based upon the amount of time Licensee was entitled to use the confidentiality restrictions; (c) is, or through no fault of the Receiving
Software. Notwithstanding the foregoing, Media Marketing will have Party has become, generally available to the public; or (d) was
no obligation under this Section 10 or otherwise with respect to any independently developed by the Receiving Party without access to,or
infringement claim based upon (w) any use of the Software not in use of, the Disclosing Party's Confidential Information. In addition,
accordance with this Agreement, (x) any use of the Software in the Receiving Party will be allowed to disclose Confidential
combination with products, equipment, software, or data not supplied Information of the Disclosing Party to the extent that such disclosure is
by Media Marketing if such infringement would have been avoided by (i) approved in writing by the Disclosing Party, (ii) necessary for the
the combination with other products,equipment, software or data, (y) Receiving Party to enforce its rights under the Agreement in connection
any use of any release of the Software other than the most current with a legal proceeding; or (iii) required by law or by the order of a
release made available to Licensee, or (z) any modification of the court of similar judicial or administrative body, provided that the
Software by any person other than Media Marketing or its authorized Receiving Party notifies the Disclosing Party of such required
agents or subcontractors. THIS SECTION 10 STATES MEDIA disclosure promptly and in writing and cooperates with the Disclosing
MARKETING'S ENTIRE LIABILITY AND THE LICENSEE'S Party, at the Disclosing Party's request and expense, in any lawful
EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT. action to contest or limit the scope of such required disclosure.
11. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO 12.4 Return of Confidential Information. The Receiving Party
A CLAIM FOR A BREACH OF SECTIONS 2,8 OR 12,OR MEDIA will return to the Disclosing Party or destroy all Confidential
MARKETING'S INDEMNITY OBLIGATIONS UNDER SECTION Information of the Disclosing Party in the Receiving Party's possession
10, EACH PARTY'S TOTAL CUMULATIVE LIABILITY IN or control and permanently erase all electronic copies of such
CONNECTION WITH THIS AGREEMENT, WHETHER IN Confidential Information promptly upon the written request of the
CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE Disclosing Party upon the expiration or termination of the Agreement.
AMOUNT OF FEES PAID TO MEDIA MARKETING UNDER THIS The Receiving Party will certify in writing signed by an officer of the
AGREEMENT DURING THE TWELVE (12) MONTH PERIOD Receiving Party that it has fully complied with its obligations under
PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. this Section 12.4.
EXCEPT WITH RESPECT TO A CLAIM FOR A BREACH OF 12.5 Confidentiality of Agreement. Neither party will disclose
SECTIONS 2 OR 12, IN NO EVENT WILL EITHER PARTY BE any terms of the Agreement to anyone other than its attorneys,
LIABLE FOR ANY CONSEQUENTIAL,INDIRECT,EXEMPLARY, accountants, and other professional advisors except(a) as required by
SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT law, (b) pursuant to a mutually agreeable press release, or (c) in
LIMITATION ANY LOST DATA,LOST PROFITS AND COSTS OF connection with a contemplated transfer of such party's business
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, permitted by Section 14.4 (provided that any third party to whom the
ARISING FROM OR RELATING TO THE AGREEMENT terms of the Agreement are to be disclosed signs a confidentiality
HOWEVER CAUSED AND UNDER ANY THEORY OF agreement reasonably satisfactory to the other party).
LIABILITY(INCLUDING NEGLIGENCE),EVEN IF SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH 13. TERM AND TERMINATION
DAMAGES. IN ADDITION, LICENSEE DISCLAIMS ALL 13.1 Term. The term of the Agreement will begin on the
LIABILITY OF ANY KIND OF MEDIA MARKETING'S Effective Date as set forth on the executed Order Form and will
SUPPLIERS. continue for the letgth of time set forth on such executed SlideManager
12. CONFIDENTIALITY. Order Form (under "Term"), or until terminated by either party as
provided in Section 13.2.
12.1 Confidential Information. Each party (the "Disclosing
Party") may from time to time disclose to the other party (the 13.2 Termination. Either party may terminate the Agreement if
"Receiving Party") certain information regarding the business of the the other party breaches any material provision of the Agreement and
Disclosing Party and its suppliers, including technical, marketing, does not cure such breach within thirty(30)days after receiving written
financial, employee, planning, and other confidential or proprietary notice thereof
information ("Confidential Information"). Any information that the 13.3 Effects of Termination. Upon termination or expiration of
Receiving Party knew or should have known,under the circumstances, the Agreement for any reason: (a) any amounts owed to Media
was considered confidential or proprietary by the Disclosing Party will Marketing under this Agreement before such termination or expiration
be considered Confidential Information of the Disclosing Party. The will be immediately due and payable;(b)all licensed rights granted in
Software, including without limitation any routines, subroutines, the Agreement will immediately cease to exist; and(c) Licensee must
directories, tools, programs,or any other technology included therein, promptly discontinue all use of the Software, erase all copies of the
shall be considered Media Marketing's Confidential Information. Software from Licensee's computers,and return to Media Marketing or
12.2 Protection of Confidential Information. The Receiving destroy all copies of the Software and Documentation on tangible
Party will not use any Confidential Information of the Disclosing Party media in Licensee's possession.
for any purpose not expressly permitted by the Agreement, and will 13A Survival. Sections 1, 2.2, 8.3, 8.5, 8.6, 8.7, 9, 10, 11, 12,
disclose the Confidential Information of the Disclosing Party only to 13.3, 13.4,and 14,together with any accrued payment obligations,will
the employees or contractors of the Receiving Party who have a need to survive expiration or termination of the Agreement for any reason.
know such Confidential Information for purposes of the Agreement and 14. GENERAL
who are under a duty of confidentiality no less restrictive than the
Receiving Party's duty hereunder. The Receiving Party will protect the 14.1 Non-Solicitation. The parties agree that Licensee shall not
Disclosing Party's Confidential Information from unauthorized use, directly or indirectly solicit any Media Marketing employee for at least
access, or disclosure in the same manner as the Receiving Party one(1)year after the termination or expiration of this Agreement.
protects its own confidential or proprietary information of a similar 14.2 Press Releases. Within thirty (30) days after the Effective
nature and with no less than reasonable care. Date, Media Marketing may,with Licensee's consent,which shall not
12.3 Exceptions. The Receiving Party's obligations under be unreasonably withheld, issue a press release announcing the
Section 12.2 with respect to any Confidential Information of the relationship between the parties. Licensee shall have the opportunity to
Disclosing Party will terminate if such information: (a) was already review and approve such announcement prior to its release.
known to the Receiving Party at the time of disclosure by the
14.3 Compliance with Laws. Licensee will comply with all written amendment signed on behalf of Media Marketing and Licensee
applicable export and import control laws and regulations in its use of by their duly authorized representatives.
the Software and,in particular,Licensee will not export or re-export the
Software without all required government licenses and Licensee agrees
to comply with the export laws,restrictions, national security controls
and regulations of the all applicable foreign agencies or authorities.
Licensee will defend, indemnify, and hold harmless Media Marketing
from and against any violation of such laws or regulations by Licensee
or any of its agents,officers,directors,or employees.
14.4 Assignments. Except as expressly authorized,neither party
may assign or transfer, by operation of law or otherwise, any of its
rights under the Agreement (including its licenses with respect to the
Software)to any third party. Any attempted assignment or transfer in
violation of the foregoing will be null and void. Media Marketing shall
have the right to assign this Agreement to any successor to its business
or assets to which this Agreement relates, whether by merger, sale of
assets,sale of stock,reorganization or otherwise.
14.5 Force Majeure. Neither party shall be liable hereunder by
reason of any failure or delay in the performance of its obligations
hereunder (except for the payment of money) on account of strikes,
shortages, riots, insurrection, fires, flood, storm, explosions, acts of
God, war, terror, governmental action, labor conditions, earthquakes,
material shortages or any other cause which is beyond the reasonable
control of such party.
14.6 Notices. All notices, consents, and approvals under the
Agreement and Statements of Work must be delivered in writing by
courier,by electronic facsimile(fax),or by certified or registered mail,
(postage prepaid and return receipt requested)to the other party at the
address set forth on the cover page of the Agreement, and will be
effective upon receipt or three(3)business days after being deposited
in the mail as required above, whichever occurs sooner. Either party
may change its address by giving notice of the new address to the other
party.
14.7 Governing Law and Venue. This Agreement and all
Statements of Work will be governed by and interpreted in accordance
with the laws of the State of Colorado, without reference to its choice
of laws rules. The United Nations Convention on Contracts for the
International Sale of Goods does not apply to this Agreement. Any
action or proceeding arising from or relating to this Agreement shall be
brought in a federal or state court in Boulder or Denver,Colorado,and
each party irrevocably submits to the jurisdiction and venue of any such
court in any such action or proceeding.
14.8 Remedies. Except as provided in Sections 9 and 10, the
parties' rights and remedies under the Agreement are cumulative.
Licensee acknowledges that the Software contains valuable trade
secrets and proprietary information of Media Marketing,that any actual
or threatened breach of Section 2 will constitute immediate,irreparable
harm to Media Marketing for which monetary damages would be an
inadequate remedy, that injunctive relief is an appropriate remedy for
such breach,and that if granted,Licensee agrees to waive any bond that
would otherwise be required.
14.9 Waivers. All waivers must be in writing. Any waiver or
failure to enforce any provision of the Agreement on one occasion will
not be deemed a waiver of any other provision or of such provision on
any other occasion.
14.10 Severability. If any provision of the Agreement is
unenforceable, such provision will be changed and interpreted to
accomplish the objectives of such provision to the greatest extent
possible under applicable law and the remaining provisions will
continue in full force and effect
14.11 Entire Agreement. This Agreement and the exhibits hereto,
constitute the entire agreement between the parties regarding the
subject hereof and supersedes all prior or contemporaneous agreements,
understandings, and communication, whether written or oral. This
Agreement shall not be modified except by a subsequently dated
EXHIBIT C
MAINTENANCE SERVICES
1. DEFINITIONS. Capitalized terms used but not defined in the acknowledging of the urgency of a response to the Error in
Standard Terms and Conditions shall have the meanings set forth in accordance with the severity identification levels and response times
this Section I: set forth herein.
1.1 "Designated Interface" means those employees of Licensee 2.3 Travel and Other Expenses. Should Licensee request that
who have received training on the Software from Media Marketing Media Marketing personnel travel to anywhere other than Media
and have been designated by Licensee to contact Media Marketing Marketing's facilities to resolve any Error in the Supported Program,
for Maintenance Services. Licensee shall pay Media Marketing's reasonable travel, meals and
lodging expenses. Under such circumstances,Licensee shall also pay
1.2 "Error"means a reproducible defect in the Supported Program, actual costs for supplies and other expenses reasonably incurred by
which causes the Supported Program not to operate substantially in Media Marketing, which are not of the sort normally provided or
accordance with the Documentation. covered by Media Marketing,provided that Licensee has approved in
1.3 "Resolution" means a modification or workaround to the advance the purchase of such supplies and other expenses. If
Licensee so requires,Media Marketing shall submit written evidence
Supported Program and/or Documentation and/or other information
provided by Media Marketing to Licensee intended to resolve an of expenditure to Licensee prior to receiving reimbursement of such
costs and expenses.
Error.
2.4 Exceptions. Media Marketing shall have no responsibility to fix
1.4 "Support Hours" means 8:00 a.m. to 5:00 p.m. (Mountain
any Errors arising out of or related to the following causes:
Time), Monday through Friday. Support by appointment may be
(a)Licensee's modification or combination of the Supported Program
available upon request
(in whole or in part), (b)use of the Supported Program in an
1.5 "Supported Environment"means any hardware and operating environment other than a Supported Environment; or (c)accident;
system platform that Media Marketing supports for use with the unusual physical, electrical or electromagnetic stress; neglect;
Supported Program. misuse; failure or fluctuation of electric power, air conditioning or
humidity control;failure of media not furnished by Media Marketing;
1.6 "Supported Program" means the current version of the excessive heating; fire and smoke damage; operation of the
Software for which Licensee has paid the then-current Maintenance Supported Program with other media and hardware, software or
Fees. telecommunication interfaces not meeting or not maintained in
1.7 "Update" means a subsequent release of the Software which accordance with the manufacturer's specifications; or causes other
than ordinary use. Any corrections performed by Media Marketing
Media Marketing generally makes available for Software licensees at
for such Errors shall be made, in Media Marketing's reasonable
no additional license fee other than shipping and handling charges,
discretion, at Media Marketing's then-current time and material
provided Licensee has paid the Maintenance Fees for such licenses
for the relevant time period. Update shall not include any additional charges.
module, release, option or future product which Media Marketing 3. UPDATES. Media Marketing will provide Updates for the
licenses separately, unless ordered and paid for by Licensee in Supported Programs as and when developed for general release in
accordance with the terms of this Agreement. Media Marketing's sole discretion. Each Update will consist of a set
of programs and files made available on machine-readable media and
1.8 "Upgrade" means a subsequent release of the Software which
includes code changes designed to add functionality for which Media will be problems ao resoedlved
vbe and any[sig n adequate too inform Licensee
Marketing charges an additional license fee. resultingof the e msolved and any significant operational differences
therefrom.
2. MAINTENANCE SERVICES PROVIDED. 4. UPGRADES. Licensee shall be entitled to order Upgrades as and
2.1 Telephone Support. Media Marketing will provide telephone when developed for general release.
support to the Designated Interface during the Support Hours. 5. LICENSEE RESPONSIBILITIES.
Telephone support will include the following:
(a) Clarification of functions and features of the Supported 5.1 Supervision and Management. Licensee is responsible for
undertaking the proper supervision, control and management of its
Program;
use of the Supported Programs, including, but not limited to:
(b) Clarification of the Documentation; (a)assuring proper Supported Environment configuration, Supported
Program installation and operating methods; and (b)following
(c) Guidance in operation of the Supported Program; industry standard procedures for the security of data, accuracy of
(d) Assistance in identifying and verifying the causes of input and output,and back-up plans, including restart and recovery in
suspected Errors in the Supported Program;and the event of hardware or software error or malfunction.
(f) Advice on bypassing identified Errors in the Supported 5.2 Training. Licensee is responsible for proper training of all
Program,if reasonably possible. appropriate personnel in the operation and use of the Supported
Programs and associated equipment.
2.2 Resolution of Errors. Media Marketing will provide an initial
response acknowledging Errors reported by Licensee in accordance 5.3 Access to Personnel and Equipment. Licensee shall provide
with the severity levels and response times identified herein. Media Marketing with access to Licensee's personnel and its
Thereafter, Media Marketing shall use commercially reasonable equipment during Support Hours. This access must include the
efforts to provide a Resolution to the Supported Program. Media ability to remotely access the equipment on which the Supported
Marketing will acknowledge each Licensee report of an Error by Programs are operating and to obtain the same access to the
written acknowledgment, in electronic form, setting forth a Incident equipment as those of Licensee's employees having the highest
Report number(IR#)for use by Licensee and Media Marketing in all privilege or clearance level. Media Marketing will inform Licensee
correspondence relating to such Error to track the Error until it is of the specifications of the remote access methods available and
resolved, and setting forth the severity of the Error and
associated software needed, and Licensee will be responsible for the
costs and use of said equipment.
Exhibit C,pg.2
EXHIBIT D
PROFESSIONAL SERVICES
Licensee desires to retain Media Marketing to provide certain of the above (collectively, the "Media Marketing Property"). To
services under the terms hereof.This Professional Services Exhibit the extent that any Media Marketing Property is included within a
("Exhibit D")is an attachment and a part of the Agreement between Deliverable or is necessary to use a Deliverable, Media Marketing
Media Marketing and Licensee,and is incorporated therein by grants Licensee a perpetual,non-exclusive and royalty-free license to
reference.This Exhibit sets forth terms additional to,and not in lieu use such Media Marketing Property in connection with such
of,the Agreement.Capitalized terms used but not defined herein Deliverable.
shall have the same meanings as in the Agreement.
6. Changes to Professional Services. If Licensee desires to
1. Statement of Work. Media Marketing agrees to render change any item on executed SlideManager Order Form (including
professional services to Licensee as set forth on executed without limitation Deliverables and schedules),Licensee shall submit
SlideManager Order Form and to deliver the deliverables set forth on a written proposal to Media Marketing detailing the changes. Media
executed SlideManager Order Form (the "Deliverables"). If the Marketing shall have fifteen(15)business days to notify Licensee of
Services are to be provided on Licensee's premises(a)Licensee shall the resulting cost and schedule changes and whether Media
provide safe and adequate space, power, network connections and Marketing has the resources available to make such changes. If
other resources as requested by Media Marketing, and (b)Media Media Marketing has adequate resources to make the change,
Marketing shall adhere to Licensee's established written guidelines Licensee may accept the revisions and SlideManager Order Form
concerning on-site visits by contractors and the use of Licensee's shall be amended accordingly. If Licensee and Media Marketing are
computer equipment, if such written guidelines have been previously not able to agree to the adjustment in the cost or schedule or other
provided to Media Marketing. changes,then SlideManager Order Form will remain unchanged.
2. Project Administration.The Contact for Licensee shall provide 7. Limited Warranty. Media Marketing shall perform the
Media Marketing all assistance and guidance necessary for the Services in a good and workmanlike manner.Licensee's sole remedy
performance of the Services. and Media Marketing's sole liability for a breach of the foregoing
shall be for Media Marketing to, at its option, either re-perform the
3. Compensation.Media Marketing shall be paid the fees set forth Services or refund sums paid for such Services. MEDIA
on executed SlideManager Order Form for time spent performing the MARKETING HEREBY EXPRESSLY DISCLAIMS ANY AND ALL
Services. Licensee shall also reimburse Media Marketing for OTHER WARRANTIES OF ANY KIND OR NATURE,WHETHER
reasonable travel,lodging and meal expenses for Services performed EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE
outside of Media Marketing's site which Media Marketing is required SERVICES PROVIDED HEREUNDER AND DELIVERABLES,
to incur in providing the Services. Licensee shall be responsible for INCLUDING WITHOUT LIMITATION THE IMPLIED
all taxes associated with the Services and the payment of fees for the WARRANTIES OF TITLE, NON-INFRINGEMENT,
Services except taxes based on Media Marketing's net income. MERCHANTABILITY AND FITNESS FOR A PARTICULAR
Licensee's payment is due within thirty (30) days of receipt of the PURPOSE. MEDIA MARKETING DOES NOT WARRANT OR
Media Marketing invoice. All prices are in U.S. dollars except as REPRESENT THAT THE DELIVERABLES WILL BE FREE
expressly stated otherwise. FROM BUGS OR THAT THE USE OF SUCH WILL BE
UNINTERRUPTED OR ERROR-FREE OR MAKE ANY OTHER
4. License. Licensee acknowledges that in order to perform the
Services,Media Marketing may be required to have access to certain REPRESENTATIONS REGARDING THE USE, OR THE
Licensee software or other material of Licensee or Licensee's RESULTS OF THE USE, OF THE DELIVERABLES IN TERMS
suppliers("Licensee Material").Licensee grants to Media Marketing OF CORRECTNESS, ACCURACY, RELIABILITY, OR
OTHERWISE. Licensee understands that Media Marketing is not
a non-exclusive, non-transferable license to use Licensee's software
and other materials as required for Media Marketing's performance responsible for and will have no liability for hardware,software, or
of the Services hereunder and only for such purpose. Media other items or any services provided by any persons other than Media
Marketing shall have the right to sublicense such grant solely to the Marketing,including without limitation items supplied by Licensee.
extent that Media Marketing requires to secure assistance for the 8. Media Marketing Indemnity. Media Marketing agrees to
performance of the Services for Licensee. indemnify and defend Licensee for the Deliverables to the extent
5. Ownership. Media Marketing indemnifies Licensee for the Software under the
Agreement. The foregoing sets forth Media Marketing's sole and
a. Ownership of Deliverables. Except as set forth in exclusive obligation and Licensee's sole and exclusive remedy for
subsection(b) below, Licensee shall be the sole owner of all any claim of intellectual property infringement or misappropriation.
intellectual property rights in and to all Deliverables. If any 9. Licensee Indemnity. Licensee shall indemnify and defend
Deliverable is identified as a "Reusable Item", then Licensee grants Media Marketing from and against any claims of injury arising from
Media Marketing a perpetual,non-exclusive and royalty-free license Media Marketing's use of Licensee's premises. Licensee warrants
to use,reproduce,create derivative works,modify and distribute such that the Licensee Materials and Media Marketing's use thereof will
Deliverable in connection with Media Marketing's business.
not infringe any patent, copyright, trademark or other intellectual
b. Ownership of Media Marketing Property. As between property right of a third party or misappropriate any third party trade
Licensee and Media Marketing, Media Marketing shall be the sole secret. Licensee agrees to indemnify, defend and hold harmless
owner of all intellectual property rights in and to(a)any invention or Media Marketing from and against any and all damages, loss,
innovation conceived or developed by Media Marketing during the demands,fees,expenses,fines,penalties and costs(including without
term of this Agreement in the performance of the Services or in the limitation reasonable attorneys' fees, costs and disbursements)
creation of the Deliverables, and(b) Media Marketing or third party incurred by Media Marketing and arising from any claims, suits,
technology existing prior to the effective date of this Agreement actions or proceedings brought against Media Marketing by any third
(including but not limited to the Software and the tools that Media party that alleges that all or any part of the Licensee Materials
Marketing uses in providing services to third parties) and all related infringe any patent, copyright, trademark or other intellectual
software, documentation, computer languages, methods, property right of a third party or misappropriate any third party trade
methodologies and algorithms, and any and all modifications to any
secret except to the extent that the claim is based on a combination of DAMAGES, WITHOUT PREJUDICE TO ANY REMEDY THAT
the Licensee Materials with the Deliverables. MEDIA MARKETING MAY HAVE UNDER COPYRIGHT,
PATENT OR OTHER INTELLECTUAL PROPERTY LAWS. IN
10. Limitation of Liability.NEITHER PARTY WILL BE LIABLE
FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST LICENSEEN EVEET SHALL MEDIA EXCEEDMA PAYMENTS Y LIRECEIVED ABILITY TO
PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR MDIAFOR SERVICES INGFROM I NSEFOR
ELAST BY
CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF TWELVE
MARKETING LICENSEE FOR THE O
OR RELATING TO THE SERVICES PROVIDED HEREUNDER ONE OR (12)MORE CLAIMS A OF WILL SERVICES.ENLARGE THETIS I OF
REGARDLESS OF THE FORM OF ACTION WHETHER IN ONE OR NOT THIS LIMIT.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT
PRODUCT LIABILITY,OR OTHERWISE,EVEN IF SUCH PARTY SECTION IS AN ABSNC ELEMENT E F THIS EXHIBIT
O
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH AND THAT TI ITS D ABSENCE; THESUBSTANTIALLY ECONOMIC F TERMS R OF
THIS EXHIBIT WOULD BE DIFFERENT.
Addendum to Media Marketing, Inc. Standard SlideManager Self-Hosted License Agreement
This Addendum to Media Marketing, Inc. Standard SlideManager Self-Hosted License Agreement("Agreement") is
made by and between Media Marketing, Inc., with offices at 6859 North Foothills Hwy, Boulder, Colorado 80302
("Media Marketing") and the party identified on executed SlideManager Order Form("licensee").
8.5 Taxes. Remove second sentence which states: Licensee will be responsible for,and will indemnify and
hold harmless Media Marketing from, payment of all such taxes(other than taxes based on Media
Marketing's net income), fees, duties, and charges, and any related penalties and interest, arising from the
payment of the Fees or the delivery or license of the Software to Licensee.
9.1 Performance. Change the 4th sentence to the following: If Media Marketing is unable to correct the error or
replace the Software, Media Marketing will refund to Licensee all License Fees actually paid, in which case
this Agreement and Licensee's right to use the Software will be terminated.
12.5 Confidentiality of Agreement. Eliminate 12.5 which states: Neither party will disclose any terms of the
Agreement to anyone other than its attorneys, accountants, and other professional advisors except(a)as
required by law, (b)pursuant to a mutually agreeable press release, or(c) in connection with a contemplated
transfer of such party's business permitted by section 14.4(provided that any third party to whom the terms of
the agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to the other party).
14.7 Governing Laws and Venue. Change the 3'" sentence to the following: Any action or proceeding arising
from or relating to this Agreement shall be brought in a federal or state court and each party irrevocably
submits to the jurisdiction and venue of any such court in any such action or proceeding.
Add the following sections 14.12 and 14.12:
14.12 No portion of this Agreement shall be deemed to constitute a waiver of any immunities the parties or their
officer or employees may possess, nor shall any portion of this Agreement be deemed to have created a duty
of care which did not previously exist with respect to any person not a party of this Agreement.
14.13 It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement,
and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and
nothing in this Agreement shall give or allow any claim or right of action whatsoever by any other person
not included in this Agreement. It is the express intention of the undersigned parties that any entity other
than the undersigned parties receiving services or benefits under this Agreement shall be an incidental
beneficiary only.
WELD COUNTY MEDIA MARKETING,INC.
Signature: Signature:
Printed: William H. Jerke Printed: ,T�GV"- "�7 vs\
Title: Chair, Board of County Commissioners Title: C
SEP 2 8 2005 4(30(uf
Date: Date:
i?19CS'aRs49/9 S
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