HomeMy WebLinkAbout20043171.tiff LICENSE AND EXCHANGE AGREEMENT FOR GEOGRAPHIC DATA
THIS1ICENSE AND EXCHANGE AGREEMENT ("Agreement") is made and entered
into this I— day of Cefober , 2004 (the "Effective Date") , by and between
,A-1, c 1,Q 1 E /_c- l�n;�L , with an address of
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Ic . 4t,�Po x c1 , sue("Licensor"), and the North Front Range Transportation
& Air Quality Planning council, d/b/a the North Front Range Metropolitan Planning
Organization, with an address of 235 Mathews Street, Fort Collins, Colorado 80524 ("Licensee")
(either party may be referred to individually as a "Party" or collectively as the "Parties").
WITNESSETH:
WHEREAS, Licensee desires to access certain orthophotography, digital planimetric
data, and parcels and soils data compiled and owned by Licensor ("Licensor GIS Data") to
incorporate into Licensee's geographic information system ("GIS") which will create usable and
updated GIS content, such as GPS, survey, subdivision, boundary, and map information relating
to Licensor's region, which is more specifically set forth in Article III of this Agreement (the
"Licensee Updated GIS Data");
WHEREAS, Licensor desires to obtain the Licensee Updated GIS Data from Licensee
that Licensee will create based upon the Licensor GIS Data;
WHEREAS, the Parties hereto desire that in exchange for Licensor supplying to Licensee
the Licensor GIS Data, Licensee will supply the Licensee Updated GIS Data to Licensor; and
WHEREAS, the Parties hereto desire to enter into this Agreement for the purpose of
facilitating the sharing of information between Licensee and Licensor.
NOW THEREFORE, for the covenants and agreements herein contained and for other
good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree
as follows:
ARTICLE I—Scope of Agreement
A. Licensor hereby grants to Licensee at no cost a non-exclusive, non-assignable and
non-transferable, worldwide license to reproduce, display, modify, make derivative works of,
and distribute the Licensor GIS Data solely to Licensee's member local governments. This
license grant is effective from the Effective Date into perpetuity for all Licensor GIS Data that is
received by Licensee prior to the termination of this Agreement.
B. Upon completion of the Licensee Updated GIS Data, Licensee hereby grants to
Licensor at no cost a perpetual, non-exclusive, non-assignable and non-transferable, worldwide
license to reproduce, modify, display, and make derivative works of the Licensee Updated GIS
Data solely for its internal business purposes. This license grant is effective from the Effective
Date into perpetuity for all Licensee Updated GIS Data that is received by Licensor prior to the
termination of this Agreement.
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2004-3171
/D- en c' (10 . 6-/S Jllf , -r r l
C. This Agreement does not constitute a sale of any title or interest in the Licensor
GIS Data or the Licensee Updated GIS Data (collectively, the "Deliverables"). Title to the
Deliverables is not transferred. Licensor shall retain ownership over all the rights to the Licensor
GIS Data. Licensee shall retain ownership over the Licensee Updated GIS Data. Each Party
reserves all rights not expressly granted by this Agreement.
D. If Licensor has updated the Licensor GIS Data since the last delivery to Licensee,
Licensor shall provide such updated data to Licensee every year following the last delivery. If
Licensee incorporates the updated data into its Licensee Updated GIS Data, Licensee shall
license it to Licensor pursuant to the terms of Section I.B of this Agreement. Neither Party shall
have any obligation or responsibility to provide maintenance, support or training to the other.
E. Confidentiality.
1. Definition. "Confidential Information" means a Party's information, not
generally known by non-party personnel, used by the Party and which is proprietary to
the Party or the disclosure of which would be detrimental to the Party. The receiving
Party agrees that any breach of this Confidentiality section will result in irreparable harm
to the disclosing Party for which damages would be an inadequate remedy and, therefore,
in addition to its rights and remedies otherwise available at law, the disclosing Party will
be entitled to equitable relief, including injunction, in the event of such breach.
2. Non-disclosure. Each Party agrees not to use, disclose, sell, license,
publish, reproduce or otherwise make available the Confidential Information of the other
Party except and only to the extent necessary to perform under this Agreement. Each
Party agrees to secure and protect the other Party's Confidential Information in a manner
consistent with the maintenance of the other Party's confidential and proprietary rights in
the information and to take appropriate action by instruction or agreement with its
employees, consultants or other agents who are permitted access to the other Party's
Confidential Information to satisfy its obligations under this Section.
Exclusion. The forgoing obligations impose no obligation upon the
receiving Party with respect to information which: (a) was in the possession of, or was
known by, the receiving Party prior to its receipt from the disclosing Party, without an
obligation to maintain its confidentiality; (b) is or becomes generally known to the public
without violation of this Agreement; (c) is obtained by the receiving Party from a third
party, without an obligation to keep such information confidential; or(d) is independently
developed by the receiving without use of Confidential Information.
4. Disclosure pursuant to law. Disclosure of the other party's Confidential
Information is not prohibited if prior notice is given to the other party and such disclosure
is: (a) compelled pursuant to a legal proceeding or(b) otherwise required by law.
ARTICLE II—Term
A. This Agreement shall commence upon the Effective Date, shall remain in force
for a period of one (I) year, and shall be renewed automatically for successive one (1) year
periods, unless sooner terminated by either Party upon written notification.
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B. Paragraph 3, Article I and the provisions of Articles IV, V, and VI shall survive
termination of this Agreement for any reason.
C. Upon termination of this Agreement, Licensee shall retain the rights granted to
Licensee in Article I, Paragraph A for any Licensor GIS Data received by Licensee prior to the
date of termination.
D. Upon termination of this Agreement, Licensor shall retain the rights granted to
Licensor in Article I, Paragraph B for any Licensee Updated GIS Data received by Licensor prior
to the date of termination.
ARTICLE III—Provision of Information to Licensor
Licensee agrees to provide the Licensee Updated GIS Data to Licensor without cost, as
the sole consideration for its receipt of Licensor's GIS Data. The Licensee Updated GIS Data
shall consist of:
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 Licensee's
boundaries which may be useful to Licensor as determined by mutual agreement of the
Parties hereto.
ARTICLE IV—No Warranties
A. The Licensor GIS Data has been developed solely for internal use only by
Licensor. Licensee expressly agrees that Licensee's use of the Licensor GIS Data is at
Licensee's sole risk and undertaking. Licensee understands and acknowledges that the Licensor
GIS Data is subject to constant change and that its accuracy and completeness cannot be and is
not guaranteed.
B. The Licensee Updated GIS Data has been developed solely for internal use only
by Licensee and its members. Licensor expressly agrees that Licensor's use of the Licensee
Updated GIS Data is at Licensor's sole risk and undertaking. Licensor understands and
acknowledges that the Licensee Updated GIS Data is subject to constant change and that its
accuracy and completeness cannot be and is not guaranteed.
C. THE PARTIES ARE DISTRIBUTING THE DELIVERABLES ON AN "AS IS"
BASIS. NEITHER PARTY MAKES ANY WARRANTIES OR GUARANTEES, EITHER
EXPRESSED OR IMPLIED, AS 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 THE DELIVERABLES FOR A
PARTICULAR PURPOSE.
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D. NEITHER PARTY IS RESPONSIBLE NOR LIABLE FOR ANY DIRECT,
INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES
WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF USE OF THE
DELIVERABLES OR INABILITY TO USE THE DELIVERABLES OR OUT OF ANY
BREACH OF ANY WARRANTY. BOTH PARTIES AGREE THAT THE DELIVERABLES
SHALL BE USED AND RELIED UPON ONLY AT THE RISK OF THE RECEIVING
PARTY.
ARTICLE V—Liabilities
A. NOTWITHSTANDING THE PROVISIONS OF ARTICLE IV ABOVE, IF
LIABILITY CAN BE IMPOSED, EACH PARTY AGREES THAT THE AGGREGATE
LIABILITY FOR ANY AND ALL LOSSES OR INJURIES, 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 LICENSOR UNDER THIS AGREEMENT, AND
BOTH PARTIES COVENANT AND PROMISE THAT THEY WILL NOT SUE THE OTHER
FOR A GREATER AMOUNT.
B. NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO WAIVE OR
LIMIT ANY RIGHT OR DEFENSE AVAILABLE TO EITHER PARTY UNDER THE
"COLORADO GOVERNMENTAL IMMUNITY ACT" OR ANY SIMILAR OR RELATED
PROVISION OF LAW.
ARTICLE VI—Breach and Remedies
In the event either Party breaches any of the terms, conditions, and covenants contained
in this Agreement, the aggrieved Party shall have the right to terminate the license granted in this
Agreement and shall be entitled to any and all legal or equitable remedies, including but not
limited to injunctive relief.
ARTICLE VII—Miscellaneous
A. The validity and interpretation of this Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado and the United States of America.
B. The exclusive venue for any legal action arising out of this Agreement shall be
Larimer County, Colorado, and/or the Federal District Court for the District of Colorado.
C. This Agreement contains no financial commitments on the part of either Party.
Any financial commitments which become a part of this Agreement are subject to appropriation
by the governing body of the affected Party.
D. Captions used in this Agreement are for convenience and are not used in the
construction of this Agreement.
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E. This Agreement contains the entire understanding of the Parties and supersedes
any other prior agreements between the Parties concerning the subject matter of this Agreement,
whether oral or written. 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.
F. If for any reason a court of competent jurisdiction finds any provision of this
Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the
maximum extent permissible so as to affect the intent of the Parties, and the remainder of this
Agreement shall continue in full force and effect.
G. Nothing contained herein shall imply an employer/employee relationship, a joint
venture, partnership, or other association between the Parties.
H. Any notice or communication given pursuant to this Agreement shall be given in
writing, either in person (deemed given when actually received) or by regular United States mail
(deemed given three (3) days after mailed), at the following addresses:
LICENSOR: Weld County Board of Commissioners
915 10th Street
Greeley, CO 80632
LICENSEE: North Front Range Metropolitan Planning Organization
235 Mathews Street
Fort Collins, Colorado 80524
With a copy to: Kendra L. Carberry, Esq.
Hayes, Phillips, Hoffmann& Carberry, P.C.
Suite 450, The Market Center
1350 17th Street
Denver, CO 80202-1576
I. Each signatory warrants that it has full power and authority to enter into this
Agreement, and where applicable, to act as the agent of the represented Party and to bind that
Party to perform its obligations under this Agreement.
J. 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 contained 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 deemed an incidental beneficiary only.
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K. Neither this Agreement nor the rights granted by it shall be assigned or transferred
without the express written permission of the other Party. 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.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and
year first above written.
LICENSOR:
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Robert D. Masden, hC air 10/0 e t P L E •
Board of Weld County Comm"ssione t :'
ATTEST: I /86/ e:0st:
Clerk to t 14
Deputy Cler the Board
LICENSEE: 6� !lISSS
Cli av n, xecu ' e Director
ATTEST:
Kay Wood, Ofer
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