HomeMy WebLinkAbout941345.tiff SOFTWARE LICENSE AND SERVICES AGREEMENT
BETWEEN
SCT PUBLIC SECTOR,INC.
AND
WELD COUNTY,COLORADO
This Agreement Number 11159 is entered into by and between SCT Public Sector, Inc., a Delaware corporation
("SCT"), and Weld County,Colorado ("Licensee") as of the Effective Date.
The parties to this Agreement agree as follows:
1. Certain Definitions
(a) "Equipment" means one (1) hardware configuration at the Location, using a UNIX operating system, for which
SCT supports both the SCT Software and the Database Software. Licensee shall identify the hardware configuration
proposed as the Equipment in a writing provided to SCT as soon as reasonably practicable for SCT's approval or
disapproval thereof.
(b) "Intellectual Property Rights" means all patents, patent rights, copyrights, copyright registrations, trade
secrets, trademarks, service marks, trademark and service mark registrations, goodwill pertaining to trademarks and service
marks, and confidential information.
(c) "Location" means Licensee's administrative computing facility located at 915 10th Street, 3rd Floor, Greeley,
Colorado 80631.
(d) "Object Code" means computer programs assembled, compiled, or converted to magnetic or electronic binary
form on software media, which are readable and usable by computer equipment, but not generally readable by humans
without reverse assembly, reverse compiling, reverse conversion, or reverse engineering.
(e) "Source Code" means computer programs written in higher-level programming languages, sometimes
accompanied by English language comments and other programmer documentation. Source Code is readable by humans and
may be translated into Object Code for execution on computer equipment through the process of compiling or assembling
or may be executed through the process of interpretation at the time of execution.
(f) "SCT Software" means the Source Code and Object Code for the computer programs and computer coded
instructions for the following SCT-proprietary Major Systems: BANNER Finance (excluding the Investment Management
Module) and FOCUS Express for BANNER Finance System, including all related specifications, documentation, technical
information, and all corrections, modifications, additions, improvements and enhancements to any of the foregoing
provided to Licensee by SCT.
(g)"Major System" means any one of the systems of the SCT Software identified in Section 1(f) above.
(h) "Database Software" means the SCT then-supported version of the Object Code for the following computer
programs developed by Oracle Corporation (the "Database Licensor"): RDBMS (including SQL*Loader), SQL*Forms,
SQL*Plus, PRO*COBOL, PRO*C and SQL*Net with TCP/IP protocol driver, including all related specifications,
documentation, technical information and all corrections, modifications, additions, improvements and enhancements to
any of the foregoing provided to Licensee by SCT or the Database Licensor, subject to the restrictions and limitations set
forth in Section 3(f) of this Agreement. SQL*Plus, PRO*COBOL and PRO*C are licensed for use by no more than one (1)
development user. SQL*Net is licensed for twenty-four(24) concurrent users on desktop workstations and the host system.
All other programs are licensed by twenty-four (24) concurrent users comprised of no more than one (1) development user
and twenty-three (23) deployment users.
(i) "Effective Date" means the date identified as such on the signature page of this Agreement.
(j) "FOCUS Software" means the SCT then-supported version of the Object Code for the computer programs of
Information Builders, Inc. (the "FOCUS Licensor"), referred to as the FOCUS ReportWriter, including the Oracle Interface,
including all related specifications, documentation, technical information, and all corrections, modifications, additions,
improvements and enhancements to any of the foregoing provided to Licensee by SCT or the FOCUS Licensor.
(k) "Licensed Software"means the SCT Software, the FOCUS Software and the Database Software.
2. Ownership, SCT owns the SCT Software, all copies of the SCT Software, and all Intellectual Property Rights for and
in the SCT Software. The FOCUS Licensor owns the FOCUS Software, all copies of the FOCUS Software, and all Intellectual
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Property Rights for and in the FOCUS Software. The Database Licensor owns the Database Software, all copies of the
Database Software,and all Intellectual Property Rights for and in the Database Software.
3. license, In consideration of Licensee's full payment of the fees set forth in Section 6 below, SCT hereby grants to
Licensee a perpetual, non-exclusive, non-transferable license to use the Licensed Software subject to the terms and
conditions contained in this Agreement. Any rights not expressly granted in this Agreement are expressly prohibited.
(a) Source Code. Licensee shall have the non-exclusive right to copy and use, subject to the provisions of this
Agreement, including without limitation Section 3(d)below, the Source Code for the SCT Software on the Equipment at the
Location to compile, modify, improve and enhance the SCT Software for Licensee's own in-house computing operations.
(b) Object Code Licensee shall have the non-exclusive right to copy and use, subject to the provisions of this
Agreement, the Licensed Software in Object Code form on the Equipment at the Location for Licensee's in-house computing
operations. Licensee may also use the Licensed Software in Object Code form temporarily on a configuration comparable to
the Equipment, either at the Location or at a site other than the Location, upon prompt written notice to SCT, for disaster
recovery of Licensee's computer operations if the Equipment is inoperative.
(c)Restrictions on Use of the Licensed Software Unless SCT gives its prior written consent. Licensee may not
assign, license, or otherwise transfer, voluntarily, by operation of law or otherwise, its right to use the Licensed Software.
Licensee may not make the Licensed Software available in any commercial time-sharing, commercial networking, or rental
arrangements. Both before and after termination of this Agreement for any reason, Licensee will not permit (i) any person
or entity, other than Licensee's employees with a need to know, directly or indirectly to use, have access to or use of all or
any part of the Licensed Software, or (ii) all or part of the Licensed Software to be exported outside the United States of
America, in any manner or by any means, without in each instance first obtaining SCT's prior written consent and, if
required, a validated license from the Office of Export Administration within the United States Department of Commerce and
other appropriate governmental authorities of the United States.
(d)Restrictions on Use of Source Code. Licensee will not disclose all or any part of the Source Code to any person
except its employees as reasonably necessary to permit such employees to use the Source Code for the purposes explicitly
permitted in this Agreement. Licensee may permit its employees to have access to the Source Code only on a need-to-know
basis and only if prior to granting such access, each such employee has executed a non-disclosure agreement providing
reasonable protection of SCT's trade secrets and other proprietary interests contained in the Source Code, and has been
informed in writing of the non-disclosure obligations of Licensee and the employee under this Agreement.
(e)Restrictions on Use of FOCUS Software. Licensee's use of the FOCUS Software shall be subject to all of the
additional terms and conditions set forth below:
(i) Licensee agrees not to use the FOCUS Software for any purpose except with one or more of the
Major Systems of the SCT Software and is prohibited from using the FOCUS Software for purposes of expanding the SCT
Software beyond the scope provided and supported by SCT;
(ii) Licensee agrees not to use the FOCUS Software except on the Equipment at the Location for
Licensee's own internal data processing;
(iii) Licensee agrees not to transfer or duplicate the FOCUS Software except for temporary transfer
in the event of an Equipment malfunction and to create a reasonable number of backup and archival copies;
(iv) Licensee will not assign its right to use the FOCUS Software, and will not make the FOCUS
Software available in any timesharing or rental arrangement;
(v) Licensee is prohibited from causing or permitting the reverse engineering, disassembly or
decompilation of the FOCUS Software;
(vi) Licensee acknowledges that the FOCUS Software is proprietary to the FOCUS Licensor and is
supplied by SCT under license from the FOCUS Licensor. Title to the FOCUS Software shall at all times remain vested in
the FOCUS Licensor or its designated successor. Nothing in this Agreement shall be construed to allow title of the FOCUS
Software to pass to the Licensee;
(vii) LICENSEE AGREES THAT THE FOCUS LICENSOR SHALL NOT BE LIABLE FOR ANY
DAMAGES,WHETHER DIRECT,INDIRECT,INCIDENTAL OR CONSEQUENTIAL,ARISING FROM ANY USE OF THE
FOCUS SOFTWARE;
(viii) Licensee shall, at the termination of the sublicense of the FOCUS Software under this
Agreement for any reason, discontinue use of the FOCUS Software and destroy or return to SCT all copies (including
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archival and all other copies) of the FOCUS Software and all copies of any written material furnished by the FOCUS
Licensor or by SCT to Licensee in conjunction with the FOCUS Software, including instructions and user guides;
(ix) Licensee acknowledges and agrees that the FOCUS Licensor is a third party beneficiary of the
license of the FOCUS Software granted to Licensee under this Agreement.
(f)Restrictions on Use of Database Software Licensee's use of the Database Software shall be subject to all the
additional terms and conditions set forth below:
(i) Licensee has the right to use the Database Software only in Object Code form, only on the
Equipment at the Location, and only for Licensee's internal data processing;
(ii) Licensee is prohibited from transfer or duplicating the Database Software except and for
temporary transfer in the event of Equipment malfunction and in order to make a single backup or archival copy of the
Database Software;
(iii) Licensee is prohibited from assigning its license to use the Database Software in whole or in
part and is prohibited from making the Database Software available in any timesharing or rental arrangement, in whole or
in part;
(iv) Licensee is prohibited from causing or permitting the reverse engineering, disassembly or
decompilation of the Database Software, in whole or in part;
(v) Licensee acknowledges that the Database Software is proprietary to the Database Licensor and
is supplied by SCT under license from the Database Licensor. Title to the Database Software shall at all times remain vested
in the Database Licensor or its designated successor. Except for the right of use that is expressly provided to Licensee under
this Agreement, no right, title or interest in or to the Database Software is granted to Licensee;
(vi) Licensee agrees that the Database Licensor shall not be liable for any damages, whether direct,
indirect, incidental, special, or consequential, arising from the Licensee's use of the Database Software or related materials;
(vii) At the termination of this Agreement with respect to the Database Software for any cause
whatsoever, Licensee shall discontinue its use of the Database Software and shall deliver the Database Software, including
all archival or other copies of the Database Software, to SCT in accordance with the provisions of Section 10(d)below and
shall forfeit all rights to use the Database Software in any way;
(viii) Licensee is prohibited from publishing any result of any benchmark tests which compare the
Database Software to other database software programs;
(ix) Licensee is prohibited from exporting or permitting the export of all or any part of the
Database Software outside the United States of America, in any manner or by any means;
(x) Licensee acknowledges and agrees that the Database Licensor is a third party beneficiary of this
Agreement;
(xi) Licensee acknowledges and understands that the Database Software is not specifically
developed or licensed for use in any nuclear, aviation, mass transit or medical application or in any other inherently
dangerous application.
(g)Software Necessary to Use the SCT Software. Licensee acknowledges and understands that in order to use any
of the Major Systems, Licensee must also obtain the right to use and must maintain and have installed on the Equipment:
the Database Software, either licensed from SCT, the Database Licensor or its designated affiliate; a COBOL Compiler
compatible with the Equipment and the Database Software (specifically, if available for the Equipment, MicroFocus
COBOL), either licensed directly from MicroFocus or from the Equipment vendor under a different product name; a "C"
Compiler that is both compatible with the Equipment and the Database Software and has been approved in writing by SCT
(Licensee shall identify the "C"compiler in a writing provided to SCT as soon as reasonably practicable for SCrs approval
or disapproval); and a C programming/development environment to facilitate the installation of the Database Software and
the C compiler. Licensee also acknowledges and understands that, in order to use any FOCUS Express Major System of the
SCT Software, Licensee must maintain and have installed on the Equipment, the SCT then-supported unmodified version of
the FOCUS Software and the applicable BANNER Major System(s), the right of use for which SCT is providing to Licensee
under the terms of this Agreement
(h) Intellectual Property Rights Notices. Licensee agrees to include the Intellectual Property Rights notice(s)
provided by SCT in the code, or written on labels or containers of the Licensed Software, or on the cover or title page of
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documentation, in any copy or part thereof made by Licensee. Licensee shall not modify or remove, in any manner, the
Intellectual Property rights notice(s)provided by SCT in connection with the Licensed Software.
4. ,Services,
(a)Implementation/Support. SCT agrees to perform the Implementation/Support services specified in Exhibit IS,
which is attached to and incorporated in this Agreement by reference, on the terms and conditions contained in this
Agreement, for the applicable fees set forth in Exhibit P.
(b)Cencnitints and Modification Services. Subject to the availability of SCT personnel to provide such services,
SCT agrees to provide to Licensee, at Licensee's written request, the services described in Exhibit CS, which is attached to
and incorporated in this Agreement by reference, for the fees set forth in Exhibit CS and on the terms and conditions
contained in this Agreement.
S. Delivery, SCT will use its best efforts to deliver the Licensed Software to Licensee at the Location within thirty (30)
days of the Effective Date. One(1) set of documentation for the Licensed Software shall be delivered to Licensee. The date
on which a system of the Licensed Software is first received by Licensee at the Location shall be the Delivery Date for that
system.
6. Payment and Taxes
(a) Payment. For the license of the Licensed Software, and the performance of the services described in Section
4(a), Licensee will pay scr in accordance with Exhibit P, which is attached to and incorporated in this Agreement by
reference. Travel, living, freight, and overnight delivery expenses actually incurred by SCT shall be in addition to the
amounts set forth in Exhibit P and any other exhibit of this Agreement, and shall be billed as incurred. Licensee shall pay
each invoice under this Agreement by not later than thirty (30) days from the date thereof. Any amounts not paid when due
shall bear interest at a rate of interest per annum equal to the lesser of the prime rate established from time to time by
Mellon Bank, N. A., Philadelphia, Pennsylvania plus three (3%) percent or the highest rate permitted by law.
(b)Taxes Taxes, other than taxes based on SCT's net income or capital stock, imposed by any taxing authority
and based upon or in any way relating to this Agreement, the Licensed Software, services provided or payments made under
this Agreement shall be the responsibility of Licensee and shall be payable in addition to other fees and charges under this
Agreement. If Licensee is a tax-exempt entity and not subject to any taxes, within five (5) days after the Effective Date
Licensee may provide SCT, in lieu of paying any such tax required to be paid by Licensee, with a certificate of exemption in
connection with all federal and state taxes in form and substance reasonably satisfactory to SCT; otherwise, SCT shall
invoice Licensee and Licensee shall pay to SCT all taxes required to be paid under or in connection with this Agreement.
7. Warranty and Disclaimer of Warranty
(a)Limited Warranty 1Ly SCT SCT warrants to Licensee for a period of twelve(12)months after the Delivery Date
of a Major System of the Licensed Software that the then current unmodified Major System of the Licensed Software, as used
by Licensee on the Equipment at the Location for its in-house computing operations, will operate in all material respects in
accordance with the then current documentation for the applicable Major System of the Licensed Software.
(b)Licensee's Remedy for Breach of Warranty. In the event of any breach of the foregoing warranty, SCT, at its
own expense, will provide an avoidance procedure for or a correction of each such material defect that is documented by
Licensee, as soon as is reasonably practicable. A defect is "documented" if Licensee has provided sufficient information for
SCT to reproduce the defect on the then current unmodified Major System of the Licensed Software,operating on a computer
configuration which is identical to or compatible with the Equipment and which is in SCT's possession and under SCT's
control. If, despite reasonable efforts, SCT is unable to provide an avoidance procedure for or a correction of a documented
defect, Licensee may pursue its remedy at law to recover direct damages resulting from the breach of warranty, subject to the
terms and conditions contained in this Agreement. These remedies are exclusive and are in lieu of all other remedies, and
SCT's sole obligations in the event of any breach of warranty will be as stated above.
(c)Disclaimer of Warranty Licensee agrees and understands that the warranty set forth above is made to Licensee
exclusively and is in lieu of all other warranties, and that SCT MAKES NO OTHER WARRANTIES
WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE LICENSED SOFTWARE, OR ANY
PARTS THEREOF, AND THAT SCT EXPLICITLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. FURTHER, SCT
EXPRESSLY DOES NOT WARRANT THAT THE LICENSED SOFTWARE, OR ANY PARTS THEREOF,
WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL BE COMPATIBLE
WITH ANY HARDWARE OR SOFTWARE (OTHER THAN THE LICENSEE ENVIRONMENT IDENTIFIED
IN EXHIBIT IS) POSSESSED OR TO BE POSSESSED BY LICENSEE.
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(d)Abrogation ova
... _ The warranty set forth above will be null and void if(i) notwithstanding
er
provision of this Agreement, any person (including Lice
delivered to Licensee, or (ii) Licensee refuses to mplement)modifications attempts to -0to the rrect or m�i the any FotOCUS
Licensor and/or the Database Licensor may provide for the � any of the Licensed Software as
be provided n by SCI, Licensed Software ntwhether that or not uOCUS
the FOCUS Licensor or the Database Licensor.of correction or improvement, or required to
8. Confldea•+a+ *-•orm tt
-tea The party receiving ("Recipient") any confidential information under this Agreement
from the other party("Owner")agrees: (i)to treat the that it will not knowingly disclose to any Owner'sntity not ca ar to information iAgreement,
n, use e
person's or entity's benefit, any confidential information of thea party , this A regimenthe Owner; ar (ii)
Owner. In no event will or the Recipient rits own or any such
maintain the confidentiality of the Owner's confidential information than the Recipient uses to
of its own information of equal im use less care to
q portance. The obligations set forth in this Section 8 are taubjec the the effollowing
definitions, terms and conditions: subject to following
(a) Definitions Confidential information of Licensee includes non-public information and data regarding
Licensee's administrative methods, administrative plans and data processing. Confidential information of SCT includes the
Licensed Software, algorithms, methods, techniques and processes revealed by the Source Code of the SCT Software, non-
public information concerning SCTs business, any information provided by a third party to SCT with respect to which SCT
has a confidentiality obligation, and the terms and provisions of this Agreement.
(b)ageism's Confidential information, whether or not described above, does not include information that: (i)
is or becomes known to the public without fault or breach of the Recipient; (ii) the O
s
without restriction on disclosure; or (iii) the Recipient receives from a third caner without regularly restriction oon to disclosure p and
without breach of a non-disclosure obligation. Parry on and
(c)Survival of Obl g
iation Notwithstanding the termination of this Agreement, the non-disclosure and non-use
obligations set forth above will remain in full force with respect to each item of confidential information for a period of ten
(10)years after the first receipt of that item by the Recipient.
9. Indemnnitfgt,
(a)Indem itv by jaunkee, Licensee agrees to indemnify SCT
demand, action, proceeding, loss, liability, cost and expense (including and hold l it harmless ot costs and from any of attorneys, accountants and other professionals) incurred or ufferedb Snoutlimitationresult court any ts andola on by Licensee
of the obligations, restrictions or limitations in this Agreement or of anyy of S as a eFOCUS of: )Licensor's' or the
tas
Licensor's Intellectual Property Rights; or (ii) the use, performance, quality, condition, service, maintenance or support of
the FOCUS Software and/or the Database Software, in whole or in part.
(b)Intgmntty by CCT SCT will defend or settle, at its own expense,
extent that it is based on a claim that use of any system of the Licensed Software ctio provided brought against pursuant rsun to this
s
Agreement infringes any United States copyright of others, and $ by SCT
awarded against Licensee in any such action attributable towill a pay any costs,de damages a paymentso
expressly conditioned on the following: any such claim; but such defense,Licensee settlements and such claim; are
orneys' fees i
that SCT is granted in writing sole control o that he defense nse ofs fany ed promptly uch claim in and writing f all negotiations any (ii)
compromise; (iii) that Licensee cooperates with SCT in a reasonable way to facilitate the settlement or defense of the claim;
such of for its settlement or
(iv) that the claim does not arise from modifications not authorized in writing by S
products provided by SCT with items provided by Licensee or others; and v or from the te or oftheLi combination of
Software become, or in SCT's opinion be likely to become, ( ) that should any system the Licensed
permit SGT, at the the nseje of such t to a claim ntn of the same a then Licensee of
this Agreement,or(B) to replace ornmodty the procure
for Licensee o rightes non-infringingconin using the under the i terms in
function, or (C) to refund to Licensee the license fee paid to SCr by that it b Licensee under this Agreement for tnd he system of the
Licensed Software giving rise to the liability substantially equivalent n), less a charge use by Licensee based on straight line
depreciation assuming a useful life of five (5 years, THE eFOREGOING IS r SCT'S EXCLUSIVE OBLIGATION
WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
10. Term and T a frQn , This Agreement will continue in full force and effect except as follows:
(a)iszajnaiiimni, SCT will have the right to restrictions on disclosure and use of SCTs confidential information provided under this nate this tAgreement;) (ii Licensee hinfinegess
or participates in infringement of any Intellectual Property Rights relating to the Licensed Software; (iii) Licensee fails to
honor the limitations and restrictions on use of the Licensed Software, or any ( )
(iv) Licensee files a voluntary petition in bankruptcy or remains an involuntaryt thereof, as in
in this for Agreement;
pd
petitioner in bankruptcy a period
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5
exceeding ninety (90) days; or (v) Licensee breaches or fails to perform any other material term or condition of this
Agreement.
(b) Termination by Licensee. Licensee will have the right to terminate this Agreement, with respect to the
Licensed Software or the Licensed Software (excluding the Database Software) if: (i)SCT fails to honor the restrictions on
disclosure and use of Licensees confidential information provided under this Agreement; or (ii) SCT breaches or fails to
perform any other material term or condition of this Agreement.
(c)Procedure for Termination. Either party may terminate this Agreement at any time while the event or condition
giving rise to the right of termination exists, by giving the other written notice describing that event or condition in
reasonable detail. Upon receipt of that notice, the other party will have a period of thirty (30) days in which to cause that
event or condition to be corrected or cured to the reasonable satisfaction of the party desiring termination. If the event or
condition giving rise to the right of termination is not so corrected or cured within that period, this Agreement will
terminate as of the end of that period automatically, without further act by any party. Notwithstanding the foregoing,
however, in the event that Licensee files a voluntary petition in bankruptcy or remains an involuntary petitioner in
bankruptcy for a period exceeding ninety (90) days, SCT shall have the right to terminate this Agreement immediately,
without further action or delay, by providing Licensee with written notice of such termination.
(d)Effect of Termination, If this Agreement is properly terminated by either party, Licensee promptly will return
to SCT or(at SCI's request) destroy all copies of the Major Systems of the Licensed Software with respect to which it is
terminating this Agreement, and will certify to SCT in writing, over the signature of a duly authorized representative of
Licensee, that it has done so.
(e) Survival of Obligations All obligations relating to non-use and non-disclosure of confidential information,
indemnity, and the obligations of Licensee to respect Intellectual Property Rights will survive termination of this
Agreement for any reason.
(f)Termination Without Prejudice to Other Rights and Remedies. Termination of this Agreement by either SCT or
Licensee in accordance with the terms of this Agreement will be without prejudice to the terminating party's other rights and
remedies under or in connection with this Agreement, both at law and in equity.
(g) Survival of Agreement with Respect to any Database Software if not Terminated. In the event Licensee exercises
its right to terminate this Agreement with respect to all of the Licensed Software excluding the Database Software, as
provided in this Section 10(b), then this Agreement will continue in full force and effect with respect to the Database
Software and Licensee shall continue to be bound by the terms and conditions of this Agreement with respect to the
Database Software.
11. Notices All notices and other communications required or permitted under this Agreement will be in writing and
except as otherwise provided in this Agreement, will be deemed given when delivered personally, sent by United States
registered or certified mail, return receipt requested, or sent by overnight courier to the address shown on the signature page
hereof, or to such other place as the parties hereto from time to time may direct. A copy of all notices to SCT shall also be
sent to the attention of SCTs General Counsel at SCTs address set forth on the signature page.
12. Force Majeure Neither party to this Agreement will be liable to the other for any failure or delay in performance
under this Agreement due to circumstances beyond its reasonable control including, without limitation, Acts of God,
accident, labor disruption, acts, omissions and defaults of third parties, and official, governmental and judicial action not
the fault of the party failing or delaying in performance.
13. Assignment, The benefits and burdens of each party under this Agreement will not be assignable without the prior
written consent of the other party to this Agreement, and any attempt to assign them without that consent will be void.
Notwithstanding the foregoing, SCT may assign this Agreement to its successor by merger or consolidation or to any
person or entity that acquires all or substantially all of its capital stock or assets; and SCT may assign this Agreement in
whole or in part to any person or entity to which it transfers any exclusive rights in the SCT Software.
14. No Waiver No failure of either party to this Agreement to prosecute its rights with respect to any single or
continuing breach of this Agreement will act as a waiver of the right of that party to later exercise any right or enforce any
remedy granted under this Agreement with respect to that same or any other breach of this Agreement by the other party to
this Agreement.
15. choice of Law; Severability This Agreement will be governed by and construed in accordance with the laws of
the State of Colorado. If any provision of this Agreement is found invalid or unenforceable, it will be enforced to the
maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be
affected.
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16. ),IMITATIONS OF LIABILITY, SCT AND LICENSEE ACKNOWLEDGE AND AGREE THAT IN NO
EVENT WILL SCT'S LIABILITY IN CONNECTION WITH THE LICENSED SOFTWARE, THE SERVICES
PROVIDED UNDER THIS AGREEMENT, THIS LICENSE, OR ANY OTHER MATTER RELATING TO
THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY PAID TO SCT BY LICENSEE UNDER THIS
AGREEMENT FOR THE LICENSE FEE FOR THE LICENSED SOFTWARE GIVING RISE TO THE
LIABILITY AND SCT WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF
DATA, AND LOSS OF REVENUES, EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN
ADVANCE. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE,
INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, SCT'S
NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER CAUSES OF ACTION
BASED ON SIMILAR LEGAL THEORIES. SCT AND LICENSEE FURTHER ACKNOWLEDGE AND
AGREE THAT THEY ARE ENTERING INTO THIS AGREEMENT ON THE UNDERSTANDING THAT THE
FEES FOR THE LICENSED SOFTWARE, AND THE SERVICES TO BE PROVIDED UNDER THIS
AGREEMENT HAVE BEEN SET TO REFLECT THE FACT THAT LICENSEE'S REMEDIES, AND SCT'S
LIABILITY, SHALL BE LIMITED AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND IF NOT SO
LIMITED, THE FEES FOR THE SAME WOULD HAVE BEEN SUBSTANTIALLY HIGHER.
17. Entire Aereement This Agreement sets forth the entire agreement between the parties with respect to the subject
matter hereof, and all prior discussions, representations, proposals, offers and oral or written communications of any nature
are entirely superseded hereby and extinguished by the execution of this Agreement. Any purchase order or similar
document which may be issued by Licensee in connection with the Licensed Software, the license thereof, the services
provided, or any other matter relating to this Agreement shall be for Licensee's internal purposes only and any terms and
conditions which may be included in such purchase order or other document shall not modify in any manner any of the terms
and conditions of this Agreement and shall not bind SCT in any manner and shall be completely ineffective and
unenforceable against SCT, even if it is initialed, signed, or acknowledged by a representative of SCT. No modification
hereof or waiver of any right under this Agreement will be effective unless it is evidenced in a writing executed by an
authorized representative of each party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, through the signatures of their duly authorized
representatives.
Effective Date:
S PU I @ C. WELD COUNTY,COLORADO
By: •.
ichazd A. umenthal By: tp �� ._� '
enior Vice President t / l )(1O J c /_ Z
962 Delaware Avenue 77 (me ii FEy)
Lexington, KY 40505 (Printed Name of Signatory)
Title: a l49�) vn $1-y) �
915 10th Street, 3rd Floor
Greeley, Colorado 80631
Weld County FO 8/5/94 3:35 PM
7
FXHBIT P
Payment Schedule
Licensee's cost for the license of the Licensed Software, and the services rendered pursuant to this Agreement is as
follows:
Deliverable Cost
BANNER Finance System License Fee* $82,500
FOCUS Software License Fee S15,312
FOCUS Express for BANNER Finance System License Fee $1,435
Database Software $59,107
lmnlementation/Sunport Services
BANNER Finance System $41,800
Four hundred forty (440)person-hours,
at a rate of$95 per person-hour
FOCUS Software $3,040
Thirty-two (32)person-hours, at a rate of$95 per person-hour
FOCUS Express for BANNER Finance Svs'ej S2,280
Twenty-four(24)person-hours, at a rate of$95 per person-hour
Database Software $7,600
Eighty (80)person-hours, at a rate of$95 per person-hour
Customization Services $28,500
Three hundred(300)person-hours, at a rate of$95 per person-hour
All services must be provided within 24 months of the Effective
Date.
* Although SCI' will deliver to Licensee the entire BANNER Finance System, the license fee set forth above includes
a fee solely for the use of the functionality of the BANNER Finance System other than the functionality of the Investment
Management Module.
Payment of the license fee for each Major System shall be made by Licensee to scr as follows: thirty (30%)
percent by not later than thirty (30)days after the Effective Date; an additional forty (40%) percent by not later than ninety
(90)days after the Delivery Date of the applicable Major System; and the remaining thirty (30%) percent by not later than
one hundred eighty (180)days after the Delivery Date of the applicable Major System.
Payment of the license fee for the Database Software shall be made by Licensee to SCT in full by not later than
thirty(30)days after the Delivery Date of the Database Software.
Payment of the license fee for the FOCUS Software shall be made by Licensee to SCT in full by not later than
thirty (30)days after the Delivery Date of the FOCUS Software.
Implementation/Support Services (Exhibit IS) and Customization Services (Exhibit CS) shall be invoiced
monthly, as such services are rendered, together with travel, living, freight, and overnight delivery expenses, and shall be
paid by Licensee to SCT by not later than thirty (30)days from the date of invoice therefor.
Weld County FO 8/5/94 3:35 PM
8
=Mrr i
Customization Service
I. e e ion of Soccifications for Modificatio t SCT c
e
A. Interview Licensee personnel to determine changes desired to be made to SCf Software as delivered by SCT.
B. Generate revised functional and technical specifications in a System Modification Requirements ("
document, which will also contain cost and schedule estimates for SCT to implement such changes. B. )
II. Modifications
SCT will modify and test the SCT Software to the extent proposed in any SMR document generated pursuant to the
provisions of this Exhibit CS.
III. Rate - The rate of $95 per hour shall apply for one (I) year from the Effective Date, after which time scr may
increase such rates upon notice to Licensee.
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9
EXHIBIT la
Imul emen totion/S unvoq
I. Implementation/Suuport Services
SCT agrees, subject to the provisions of this Agreement and Licensee's timely performance of its obligations
under this Agreement, to provide to Licensee the Implementation/Support services hereinafter described (the
"Implementation Services").
A. Proiect Plan SCT and Licensee shall develop a project plan which identifies SCTs and Licensee's responsibilities.
Each Major System will be delivered in Source Code at the Location.
B. SCT Responsibilities SCT shall provide Licensee with the number of person-weeks set forth in Exhibit P of user
consulting and technical training in connection with the Licensed Software. Additional time may be secured at SCTs then
current rates therefor.
C. Licensee Responsibilities Licensee is responsible for establishing overall project direction including assignment and
direction of Licensee personnel involved in the project, providing a productive technical environment, and providing
operational support to the implemented Major Systems at the completion of SCT's services.
Licensee will assign an overall project manager during the term of the project. Responsibilities of Licensee's project
management personnel include daily access by SCT for project coordination, establishment and daily management of
Licensee implementation plans, review of all SCT delivered documentation, coordination of project activities, support of
resource requirements with Licensee's data processing department, management of production preparation activities in both
technical and user areas, and coordination of the resolution of any changes in Licensee's policies or operating procedures.
Licensee will also designate at least one senior technical person for each Major System from its data processing staff to
become knowledgeable and competent in supporting the Licensed Software. SCT expects these individuals to participate in
production preparation activities and SCT provided training. Licensee will also designate in each functional department a
primary systems coordinator who is responsible for committing resources and for follow-up on outstanding issues.
II. Conditions
As a condition to SCT's obligation to provide the Implementation Services, Licensee agrees to provide the
following hardware, software, and access to Licensee's facilities.
A. Software and Hardware. Licensee agrees to provide at the Location,at no cost to SCT,on or before the earliest
Delivery Date, the software and hardware listed below (the"Licensee Environment"):
-Equipment
-COBOL and"C"compilers as provided for in the Agreement
-C programming/development environment
Licensee will maintain current with the SCT-designated release of the systems software listed above. Dependent
tailoring parameters between multiple vendor products will be specified by SCT.
B. Access to Licensee Environment and Licensee's Facilities Licensee will provide such additional assistance to
SCT as SCT may reasonably request for the purpose of rendering the Implementation Services. Without limitation of the
foregoing, Licensee will provide SCT, as reasonably necessary for SCT to perform its obligations under this Agreement,
with all of the following without charge: (i) the Licensee Environment, provided and maintained at Licensee's expense in
good working order and in actual operation at all times at which SCT reasonably requests operation for the purpose of
rendering the Implementation Services; (ii) the right for SCT to use the Licensee Environment (including all related
software), either on Licensee's premises or remotely by telecommunication, at SCT's request; (iii) teleprocessing
capabilities; (iv)other computer systems of Licensee; (v) full and free access to the Licensee Environment and to Licensee's
offices; (vi) office equipment and services such as desks, chairs, word processors, telephone, copying and other equipment
and services appropriate to accommodate SCT personnel; and (vii) a reasonable amount of space on Licensee's premises,
including parking space, for SCT personnel.
Weld County FO 8/5/`94 3:35 PM
10
III. Additional Suovort.
Licensee will provide, at its sole expense, electronic access to the Licensee Environment from any of SCT's
facilities.
Until the Delivery Date and the completion of all modification work, if any, in addition to the Licensee
Environment, Licensee will provide SCT reasonable dedicated address space in which to execute an on-line test
environment. Licensee will also provide SCT with a reasonable amount of disk storage space. SCT will exercise reasonable
care to minimize the use of machine time and disk space.
Remote access will be provided on a twenty-four-hour-per-day, seven-day-per-week basis if the computer and
communications facilities are scheduled for operation and SCT usage does not degrade the normal production use of the
computer in any material respect. All disk storage allocated to SCT will be on-line during these hours.
Licensee will reimburse SCT for telephone charges incurred in connection with accessing the Licensee
Environment unless such charges are incurred by SCT in connection with SCT's warranty obligations under this Agreement.
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11
BANNERQUEST SOFTWARE TECHNICAL CURRENCY AGREEMENT
This Agreement is entered into by and between SCT Public Sector, Inc. ("SCT") and Weld County, Colorado
("Licensee") on August_, 1994.
Illaaaatind
the SCT and Licensee have entered into a BANNERQuest Software License and Services Agreement Number 11160 for
e NERQuest Maintenance Ranndest Software and Enhancements for the BANNERQue NLI Software est Sooftware and the NLI License
therefor onent"), d desire that SCT the terms and conditions
contained in this Agreement.
Accordingly, the parties agree as follows:
1. Certain Definitions
(a)Definitions Contained in the BANNEROuest License Agreement The capitalized terms of this Agreement will
have the same meanings ascribed to them in the BANNERQuest License Agreement, except as such terms are otherwise
defined in this Agreement
(b)Additional Definitions. The following definitions shall also apply:
(i)"Maintenance"means using reasonable efforts to correct documented defects, as that term is defined in
the BANNERQuest License Agreement, in the BANNERQuest Software, to the extent that NLI corrects such documented
defects and provides such corrections to SCT, without additional charge, under NLI's Technical Support program, provided
that such defects are not the result of any changes made to the BANNERQuest Software or the NLI Software, other than
Improvements provided by SCT under this Agreement.
(ii) "Enhancements" means changes to the BANNERQuest Software or the NId Software which increase
the functionality of the BANNERQuest Software or the NLI Software, to the extent that NLI provides them to SCT, without
additional charge, under NLI's Technical Support program.
(iii)"BANEROuel gg mare:means SCT's then current unmodified(other than Improvements provided
by SCT under this Agreement)BANNEROuest Finance System licensed by SCT to Licensee under the BANNERQuest License
Agreement.
(iv) "NLI Software" means the SCT then-supported unmodified (other than Improvements provided by
SCT under this Agreement) version of the computer programs developed by NLI and licensed by SCT to Licensee under the
BANNERQuest License Agreement for use with the BANNERQuest Software.
(v) "BANNEROuest System"means any one system (s) of the BANNERQuest Software together with the
NLI Software for such system identified in Section 1(b)(iii) above.
(vi) "New
elea es" means new editions of the BANNERQuest represent changes from the pre ioussrelease of the BANNERQuest Software and the Software
Software, to the extent that NLI
provides them to SCT, without additional charge, under NLI's Technical Support program.
(vii) "Imorovementc" means, collectively, Maintenance, Enhancements and New Releases provided
under this Agreement
(c)Inconsa If there are any inconsistencies between the definitions contained in this Agreement and the
definitions contained in the BANNERQuest License Agreement, the definitions contained in this Agreement shall apply.
2. Services.
(a)] p of Services In consideration of Licensee's full payment to SCT of the amounts set forth in Section 3
below, and subject to the terms and conditions set forth in this Agreement, SCT, during the term of this Agreement, agrees
to provide to Licensee Maintenance for, Enhancements of, and New Releases of, the BANNERQuest Software and the NLI
Software. Subject to the availability of SCT personnel, at Licensee's written request, SCT shall perform any installation,
implementation, or other services in connection with the Maintenance, Enhancements, and New Releases provided by SCT
under this Agreement, at SCI's then-current hourly rates.
Weld County BQ TCP 8/5/94 3:51 PM
(b) Limitations SCT's obligations under this Agreement will be limited to the then-current release and the
immediately preceding release of each BANNERQuest System. All Improvements will be part of the BANNERQuest System
and subject to all of the terms and conditions of the BANNERQuest License Agreement and this Agreement. Seri
obligations under this Agreement are further conditioned upon Licensee providing SCT, as reasonably necessary for SCT to
perform its obligations under this Agreement, with all of the following without charge: (i) the Equipment and the
BANNERQuest Configuration, provided and maintained at Licensee's expense, in good working order and in actual
operation at all times at which SCI' reasonably requests access thereto for the purpose of rendering the services under this
Agreement; (ii) remote electronic capabilities, if available from Licensee; (iii) access to other computer systems of
Licensee; (iv) access to Licensee's offices and personnel; and (v) a reasonable amount of space on Licensees premises,
including parking space, for SCT personnel.
(c)Modifications Maintenance Subject to the availability of SCT personnel, at Licensee's written request, SCI'
shall provide Maintenance in connection with any modifications made by SCT to the BANNERQuest Software (other than
Improvements provided under this Agreement)at SCT's then-current hourly rates.
3. Payment and Taxes
(a)Technical Currency Fees. For the Improvements provided by SCT under this Agreement, Licensee will pay
SCT, on September 1. 1995, a fee equal to $1,884, and on each September 1 thereafter during the term of this Agreement, a
fee specified by SCI'which will not be more than one hundred ten percent(110%)of the fee due under this Agreement on the
immediately preceding September 1.
(b)Additional Coctc, If SCT, in its reasonable judgment, determines that a suspected defect is attributable to a
cause other than a documented defect, as that term is defined in the BANNERQuest License Agreement,in the BANNERQuest
Software and/or the NLI Software, then Licensee shall pay SCT an additional amount for its work performed in connection
therewith on a per-hour basis, at SCTs then-current hourly rates. Licensee will also reimburse SCT for all travel, living,
freight, and overnight delivery expenses incurred by SCT and/or its personnel in connection with any services provided by
SCT in connection with this Agreement.
(c)Taxes Taxes, other than taxes based on SCT's net income or capital stock, imposed by any taxing authority
and based upon or in any way relating to this Agreement,the BANNERQuest Software,the NLI Software or services provided
or payments made under this Agreement shall be the responsibility of Licensee and shall be payable in addition to other
fees and charges under this Agreement. If Licensee is a tax-exempt entity and not subject to any taxes, within five(5)days
after the Effective Date Licensee may provide SCT, in lieu of paying any such tax required to be paid by Licensee, with a
certificate of exemption in connection with all federal and state taxes in form and substance reasonably satisfactory to SCT;
otherwise, SCT shall invoice Licensee and Licensee shall pay to SCT all taxes required to be paid under or in connection
with this Agreement.
(d)J.ate Charges All amounts not paid when due shall bear interest at a rate of interest per annum equal to the
lesser of the prime rate established from time to time by Mellon Bank, N. A., Philadelphia, Pennsylvania plus three (3%)
percent or the highest rate permitted by law.
4. Term. The initial term of this agreement is for the period commencing on the date set forth on the first page of
this Agreement and continuing until September 30, 1997. This Agreement shall thereafter be automatically extended for
consecutive one (1) year periods unless either party notifies the other in writing of its intent not to continue this
Agreement at least one year prior to the expiration of the then current term.
5. Disclaimer of Warranties. Licensee agrees and understands that except as expressly set forth in this Agreement
SCT MAKES NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, WITH REGARD TO ANY
IMPROVEMENTS, AND THAT SCT EXPLICITLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, SCT EXPRESSLY
DOES NOT WARRANT THAT THE BANNERQUEST SOFTWARE, THE NLI SOFTWARE OR ANY
IMPROVEMENTS WILL BE USABLE BY LICENSEE IF THE SCT SOFTWARE, BANNERQUEST
SOFTWARE, ORBEE ERROR-FREE, LI SOFTWARE HAS BEEN MODIFIED BY ANYONE
WILL OPERATE WITHOUT INTERRUPTION, WILL ANSWER ANY QUESTION THAT
IS NOT CONTAINED IN THE THEN-CURRENT QUERY LIST PROVIDED TO LICENSEE BY SCT OR
WILL BE COMPATIBLE WITH ANY HARDWARE OR SOFTWARE (OTHER THAN THE BANNER
SOFTWARE) POSSESSED OR TO BE POSSESSED BY LICENSEE.
6. Termination. Either party will have the right to terminate this Agreement if the other party breaches or fails to
perform any material term or condition of this Agreement. Either party, if it has a right of termination as provided above,
may terminate this Agreement at any time while the event or condition giving rise to that right of termination exists, by
giving the other written notice of that event or condition and describing that event or condition in reasonable detail. Upon
Weld County BQ TCP 8/5/94 3:51 PM 2
receipt of that notice, the other party will have a period of thirty (30) days in which to cause that event or condition to be
corrected or cured to the reasonable satisfaction of the party desiring termination. If the event or condition giving rise to
the right of termination is not so corrected or cured within that period, this Agreement will terminate as of the end of that
period automatically, without further act by any party. Notwithstanding the foregoing, however, in the event that Licensee
files a voluntary petition in bankruptcy or remains an involuntary petitioner in bankruptcy for a period exceeding ninety
(90) days, SCT shall have the right to terminate this Agreement immediately, without further action or delay, by providing
Licensee with written notice of such termination. Termination of this Agreement by either party in strict accordance with
the terms and conditions of this Agreement will be without prejudice to the terminating party's other rights and remedies
under this Agreement, both at law and in equity.
7. Notices All notices and other communications required or permitted under this Agreement will be in writing and
except as otherwise provided in this Agreement, will be deemed given when delivered personally, sent by United States
registered or certified mail,return receipt requested, or sent by overnight courier to the address shown on the signature page
hereof, or to such other place as the parties hereto from time to time may direct. A copy of all notices to SCT shall also be
sent to the attention of SCT's General Counsel at 4 Country View Road, Malvern, Pennsylvania 19355.
8. Force Maieure Neither party to this Agreement will be liable to the other for any failure or delay in performance
under this Agreement due to circumstances beyond its reasonable control including, without limitation, Acts of God,
accident, labor disruption, acts, omissions and defaults of third parties, and official, governmental and judicial action not
the fault of the party failing or delaying in performance.
9. Assignment The benefits and burdens of each party under this Agreement will not be assignable without the
prior written consent of the other party to this Agreement, and any attempt to assign them without that consent will be
void. Notwithstanding the foregoing, SCT may assign this Agreement to its successor by merger or consolidation or to
any person or entity that acquires all or substantially all of its capital stock or assets; and SCT may assign this Agreement
in whole or in part to any person or entity to which it transfers any exclusive rights in the BANNERQuest Software.
10. No Waiver. No failure of either party to this Agreement to prosecute its rights with respect to any single or
continuing breach of this Agreement will act as a waiver of the right of that party to later exercise any right or enforce any
remedy granted under this Agreement with respect to that same or any other breach of this Agreement by the other party to
this Agreement.
11. Choice of Law; Severability. This Agreement will be governed by and construed in accordance with the laws of the
State of Colorado. If any provision of this Agreement is found invalid or unenforceable, it will be enforced
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
Weld County BQ TCP 8/5/94 3:51 PM 3
to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not
be affected.
12. 3IMITATIONS OF LIABILITY, SCT AND LICENSEE ACKNOWLEDGE AND AGREE THAT IN
NO EVENT WILL SCT'S LIABILITY IN CONNECTION WITH THE IMPROVEMENTS OR SERVICES
PROVIDED UNDER THIS AGREEMENT, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT,
EXCEED THE AMOUNT ACTUALLY PAID TO SCT BY LICENSEE UNDER THIS AGREEMENT FOR THE
IMPROVEMENTS FOR THE BANNERQUEST SYSTEM GIVING RISE TO THE LIABILITY IN THE YEAR
THAT SUCH LIABILITY ACTUALLY ARISES, AND SCT WILL NOT BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF
PROFITS, LOSS OF DATA, AND LOSS OF REVENUES, EVEN IF INFORMED OF THE POSSIBILITY
THEREOF IN ADVANCE. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE
AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF
WARRANTY, SCT'S NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER
CAUSES OF ACTION BASED ON SIMILAR LEGAL THEORIES. SCT AND LICENSEE FURTHER
ACKNOWLEDGE AND AGREE THAT THEY ARE ENTERING INTO THIS AGREEMENT ON THE
UNDERSTANDING THAT THE FEES FOR THE IMPROVEMENTS AND SERVICES TO BE PROVIDED
UNDER THIS AGREEMENT HAVE BEEN SET TO REFLECT THE FACT THAT LICENSEE'S REMEDIES,
AND SCT'S LIABILITY, SHALL BE LIMITED AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
AND IF NOT SO LIMITED, THE FEES FOR THE SAME WOULD HAVE BEEN SUBSTANTIALLY
HIGHER.
13. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the subject
matter hereof, and all prior discussions, representations, proposals, offers and oral or written communications of any nature
are entirely superseded hereby and extinguished by the execution of this Agreement. Any purchase order or similar
document which may be issued by Licensee in connection with the Improvements or the services provided under, or any
other matter relating to, this agreement shall be for Licensee's internal purposes only and any terms and conditions which
may be included in such purchase order or other document shall not modify in any manner any of the terms and conditions of
this agreement and shall not bind SCT in any manner and shall be completely ineffective and unenforceable against SCT,
even if it is initialed,signed,or acknowledged by a representative of SCT. No modification of, or waiver of any right under,
this Agreement will be effective unless it is evidenced in a writing executed by an authorized representative of each party to
this Agreement.
IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement through the signatures of
their duly authorized representatives.
SCT PUBLIC SET IN . WELD COUNTY,COLORADO
1/! / b , �
By. By: ' /�,
Richard A.Blumenthal
Senior Vice President '��/ /4 &u 6 bc
962 Delaware Avenue ( nted Name of Signatory)
Lexington, KY 40505
Title: F}'1 ZVI�l {14'V1 1
915 10th Street, 3rd Floor
Greeley, Colorado 80631
Weld County BQ TCP 8/5(94 3:51 PM 4
BANNERQUEST SOFTWARE LICENSE AND SERVICES AGREEMENT
This Agreement Number 11160 is entered into by and between SCT Public Sector, Inc. ("SCT"), and Weld County,
Colorado ("Licensee") as of the Effective Date.
The parties to this Agreement agree as follows:
I. Certain Definitions,
(a) "RANNFR Agreement"means that certain Software Services and License Agreement between the parties bearing
an Effective Date of August_, 1994.
(b)"Equipment"means the configuration identified in the BANNER Agreement.
(c)"BANNERQuest Configuration"means the Equipment,used in a supported host configuration.
(d) "Intellectual Property Rights" means all patents, patent rights, copyrights, copyright registrations, trade
secrets, trademarks, service marks, trademark and service mark registrations, goodwill pertaining to trademarks and service
marks, and confidential information.
(e) "Obiect Code" means computer programs assembled, compiled, or converted to magnetic or electronic binary
form on software media, which are readable and usable by computer equipment, but not generally readable by humans
without reverse assembly, reverse compiling, reverse conversion, reverse engineering and/or any other disassembly or
decompilation.
(0 "Source Code" means computer programs written in higher-level programming languages, sometimes
accompanied by English language comments and other programmer documentation. Source Code is readable by humans and
may be translated into Object Code for execution on computer equipment through the process of compiling or assembling
or may be executed through the process of interpretation at the time of execution.
(g)"BANNER Software"means the SCT Software identified in the BANNER Agreement.
(h)"BANNEROuest Software"means the Source Code and Object Code for the computer programs and computer coded
instructions for the following SCT-proprietary BANNERQuest system: BANNERQuest Finance System, including all
related specifications, documentation, technical information, and all corrections, modifications, additions, improvements
and enhancements to any of the foregoing provided to Licensee by SCT.
(i)"BANNEROuest System"means any one of the system(s)of the BANNERQuest Software identified in Section 1(h)
above.
(j)"NLI Software" means the SCT then-supported version of the following computer programs developed by Natural
Language Incorporated (the "NLI Licensor"): Natural Language.NLI Connector and NI.I-Oracle Database Interface Module
for Natural Language, including all related specifications, documentation, technical information, and all corrections,
modifications, additions, improvements and enhancements to any of the foregoing provided to Licensee by SCT or NLI.
(k) "Query List"means the then-current list of English language queries provided by SCT to Licensee.
(1)"Effective Date" means the date identified as such on the signature page of this Agreement.
2. Ownership SCT owns the BANNERQuest Software, all copies of the BANNERQuest Software, and all Intellectual
Property Rights for and in the BANNERQuest Software. NU owns the NLI Software, all copies of the NLI Software, and all
Intellectual Property Rights for and in the NLI Software.
3. License In consideration of Licensee's full payment of the fees set forth in Section 6 below, SCT hereby grants to
Licensee a perpetual, non-exclusive, non-transferable license to use the BANNERQuest Software and the NLI Software
subject to the terms and conditions contained in this Agreement. Any rights not expressly granted in this Agreement are
expressly prohibited.
(a) Source Code. Licensee shall have the non-exclusive right to copy and use, subject to the provisions of this
Agreement, including without limitation Section 3(d) below, the Source Code for the BANNERQuest Software on the
BANNERQuest Configuration to compile, modify, improve and enhance the BANNERQuest Software for Licensee's own in-
house computing operations.
Weld County BO Lic 8/5/94 3:53 PM
(b) Object Code. Licensee shall have the non-exclusive right to copy and use, subject to the provisions of this
Agreement, the BANNERQuest Software and the NLI Software in Object Code form on the BANNERQuest Configuration for
Licensee's in-house computing operations. Licensee may also use the BANNERQuest Software and the NLI Software in
Object Code form temporarily on a configuration comparable to the BANNERQuest Configuration, upon prompt written
notice to SCT, for disaster recovery of Licensee's computer operations if the BANNERQuest Configuration is inoperative.
(c) Restrictions on Use of the BANNEROuest Software and NLI Software Unless SCT gives its prior written
consent, Licensee may not assign, license, or otherwise transfer, voluntarily, by operation of law or otherwise, its right to
use the BANNERQuest Software and/or the NLI Software. Licensee may not make the BANNERQuest Software and/or the
NLI Software available in any time-sharing, networking, or rental arrangements. Both before and after termination of this
Agreement for any reason, Licensee will not permit(i) any person or entity, other than Licensee's employees with a need to
know, directly or indirectly to use, have access to or use of all or any part of the BANNERQuest Software and/or the NLI
Software,or(ii) all or part of the BANNERQuest Software and/or the NLI Software to be exported outside the United States
of America, in any manner or by any means, without in each instance first obtaining SCT's prior written consent and, if
required, a validated license from the Office of Export Administration within the United States Department of Commerce and
other appropriate governmental authorities.
(d) Restrictions on Use of Source Code Licensee will not disclose all or any part of the Source Code for the
BANNERQuest Software to any person except its employees as reasonably necessary to permit such employees to use the
Source Code for the purposes explicitly permitted in this Agreement. Licensee may permit its employees to have access to
the Source Code for the BANNERQuest Software only on a need-to-know basis and only if prior to granting such access,
each such employee has executed a non-disclosure agreement providing reasonable protection of SCT's trade secrets and
other proprietary interests contained in the Source Code, and has been informed in writing of the non-disclosure
obligations of Licensee and the employee under this Agreement.
(e)Further Restrictions on Use of NLI Software. Licensee's use of the NLI Software shall be subject to all the
additional terms and conditions set forth below:
(i) Licensee acknowledges that the NLI Software is proprietary to NLI and is supplied by SCT under license from
NLI. Licensee shall be prohibited from duplicating or disclosing the NLI Software or causing the NLI Software to be
duplicated or disclosed, in whole or in part, in violation of the provisions of this Agreement
(ii) Licensee agrees not to use the NLI Software for any purpose except with the BANNERQuest Software and
within the scope of the BANNER Software, in accordance with the restrictions set forth in this Agreement.
(iii) LICENSEE AGREES THAT NLI SHALL NOT BE LIABLE FOR ANY INDIRECT,INCIDENTAL,SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING FROM THE LICENSEE'S USE OF THE NU SOFTWARE OR RELATED MATERIALS.
(iv) NU MAKES NO WARRANTIES TO LICENSEE. ALL WARRANTIES ARE PROVIDED BY SCT EXPRESSLY
AS PROVIDED FOR IN THIS AGREEMENT.
(f)BANNER Software Necessary to Use the BANNEROuest Software and the NLI Software. Licensee acknowledges
and understands that in order to use the BANNERQuest Software and the NLI Software, Licensee must have a right to use the
BANNER Software,must have installed the BANNER Software on the Equipment in operational mode as provided for in the
BANNER Agreement and must maintain the BANNER Software under SCT's Technical Currency Program.
(g) Intellectual Property Rights Notices Licensee agrees to include the Intellectual Property Rights notice(s)
provided by SCT in the code,or written on labels or containers of the BANNERQuest Software and/or the NLI Software,or
on the cover or title page of documentation, in any copy or part thereof made by Licensee. Licensee shall not modify or
remove, in any manner, the Intellectual Property rights notice(s) provided by SCT and/or NLI in connection with the
BANNERQuest Software and/or the NLI Software.
4. $ervlces
(a) Jmplementation/Support. SCT agrees to provide Licensee with Implementation and Support Services in
connection with the BANNERQuest Software and the NLI Software, on the terms and conditions contained in this
Agreement, for the applicable fees set forth in Exhibit P. Licensee understands and acknowledges that SCT will require both
remote access and in-person access to the BANNERQuest Configuration and the Equipment in order to render such
Implementation and Support Services, and Licensee agrees to provide SCT with such access, without cost to SCT therefor.
(b) Consulting and Modification Services. Subject to the availability of SCT personnel to provide such services.
SCT agrees to provide to Licensee, at Licensee's written request, the services described in Exhibit CS. which is attached to
Weld County BQ Lic8/5/94 3:53 PM
2
and incorporated in this Agreement by reference, for the fees set forth in Exhibit CS and on the terms and conditions
contained in this Agreement. Licensee understands and acknowledges that SCT will require both remote access and in-
person access to the Equipment and the BANNERQuest Configuration in order to render such consulting and modification
services, and Licensee agrees to provide SCT with such access, without cost to SCT therefor.
5. Delivery SCT will use its best efforts to deliver the BANNERQuest Software and the NLI Software to Licensee at
the address set forth on the signature page of this Agreement within thirty (30)days of the Effective Date. One (I) set of
documentation for the BANNERQuest Software and the NLI Software shall be delivered to Licensee. The date on which an
BANNERQuest System with NLI Software is first received by Licensee shall be the Delivery Date for that BANNERQuest
System with NLI Software.
6. Payment and Taxes,
(a)Payment For the license of the BANNERQuest Software, the license of the NLI Software,and the performance of
the services described in Section 4(a), Licensee will pay SCT in accordance with Exhibit P, which is attached to and
incorporated in this Agreement by reference. Travel, living, freight and overnight delivery expenses actually incurred by
SC' shall be in addition to the amounts set forth in Exhibit P and any other exhibit of this Agreement, and shall be billed
as incurred. Licensee shall pay each invoice under this Agreement by not later than thirty (30) days f om the date thereof.
Any amounts not paid when due shall bear interest at a rate of interest per annum equal to the lesser of the prime rate
established from time to time by Mellon Bank, N. A., Philadelphia, Pennsylvania plus three (3%) percent or the highest
rate permitted by law.
(b)Taxes. Taxes, other than taxes based on SCT's net income or capital stock, imposed by any taxing authority and
based upon or in any way relating to this Agreement, the BANNERQuest Software, the NLI Software or services provided or
payments made under this Agreement shall be the responsibility of Licensee and shall be payable in addition to other fees
and charges under this Agreement. If Licensee is a tax-exempt entity and not subject to any taxes,within five(5)days after
the Effective Date Licensee may provide SCT, in lieu of paying any such tax required to be paid by Licensee, with a
certificate of exemption in connection with all federal and state taxes in form and substance reasonably satisfactory to SCT;
otherwise, SCT shall invoice Licensee and Licensee shall pay to SCT all taxes required to be paid under or in connection
with this Agreement.
7. Warranty and Disclaimer of Warranty,
(a)Limited Warranty by SCT. SCT warrants to Licensee for a period of twelve(12)months after the Delivery Date of
a BANNERQuest System, that the then-current unmodified BANNERQuest System, as used by Licensee on the Equipment at
the Location for its in-house computing operations, will operate in all material respects in accordance with the then-current
documentation for such BANNERQuest System. SCT warrants to Licensee for a period of twelve (12) months after the
Delivery Date of the NLI Software,that the unmodified NLI Software, as used by Licensee on the Equipment at the Location
for its in-house computing operations, will operate in all material respects in accordance with the then-current
documentation for the NLI Software.
(b)licensee's Remedy for Breach of Warranty In the event of any breach of the foregoing warranty,SCT,at its own
expense, will provide an avoidance procedure for or a correction of each such material defect that is documented by
Licensee, as soon as is reasonably practicable. A defect is "documented" if Licensee has provided sufficient information for
SCT to reproduce the defect on the then-current unmodified BANNERQuest System or NLI Software, as the case may be,
operating on a computer configuration which is identical to or compatible with the BANNERQuest Configuration and which
is in SCT's possession and under SCT's control. If, despite reasonable efforts, SCT is unable to provide an avoidance
procedure for or a correction of a documented defect, Licensee may pursue its remedy at law to recover direct damages
resulting from the breach of warranty, subject to the terms and conditions contained in this Agreement. These remedies are
exclusive and are in lieu of all other remedies, and SCT's sole obligations in the event of any breach of warranty will be as
stated above.
(c)Disclaimer of Warranty. Licensee agrees and understands that the warranty set forth above is made to Licensee
exclusively and is in lieu of all other warranties, and that SCT MAKES NO OTHER WARRANTIES
WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE BANNERQUEST SOFTWARE, THE
NLI SOFTWARE, OR ANY PARTS THEREOF, AND THAT SCT EXPLICITLY DISCLAIMS ALL
WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.
FURTHER, SCT EXPRESSLY DOES NOT WARRANT THAT THE BANNERQUEST SOFTWARE, THE NLI
SOFTWARE, OR ANY PARTS THEREOF, WILL BE ERROR FREE, WILL OPERATE WITHOUT
INTERRUPTION, WILL ANSWER ANY QUESTION THAT IS NOT CONTAINED IN THE THEN-
CURRENT QUERY LIST PROVIDED TO LICENSEE BY SCT OR WILL BE COMPATIBLE WITH ANY
HARDWARE OR SOFTWARE (OTHER THAN THE BANNER SOFTWARE) POSSESSED OR TO BE
POSSESSED BY LICENSEE.
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3
(d)Abrogation of Warranty The warranty set forth above will be null and void if (i) notwithstanding any other
provision of this Agreement, any person (including Licensee) attempts to correct or modify any of the BANNERQuest
Software or the NLI Software as delivered to Licensee, or (ii) Licensee refuses to implement modifications to the
BANNERQuest Software or the NLI Software that SCT or NLI may provide for the purpose of correction or improvement,
whether or not required to be provided by SCI'or NLI.
8, Confidential Inrormatlon. The party receiving ("Recipient") any confidential information under this
Agreement from the other party ("Owner') agrees: (i) to treat the Owner's confidential information as proprietary to the
Owner; and (ii)that it will not knowingly disclose to any person or entity not a party to this Agreement, or use for its own
or any such person's or entity's benefit, any confidential information of the Owner. In no event will the Recipient use less
care to maintain the confidentiality of the Owner's confidential information than the Recipient uses to maintain the
confidentiality of its own information of equal importance. The obligations set forth in this Section 8 are subject to the
following definitions, terms and conditions:
(a)definitions Confidential information of Licensee includes non-public information and data regarding Licensee's
administrative methods, administrative plans and data processing. Confidential information of SCT includes the
BANNERQuest Software, algorithms, methods, techniques and processes revealed by the Source Code of the BANNERQuest
Software, non-public information concerning SCT's business and the terms and provisions of this Agreement.
Confidential Information of NLI includes the NLI Software (including the Source Code and Object Code therefor) and the
design, implementation, ideas and algorithms therein and therefor.
(b) Exceptions. Confidential information, whether or not described above, does not include information that: (i) is
or becomes known to the public without fault or breach of the Recipient; (ii) the Owner regularly discloses to third parties
without restriction on disclosure; or (iii) the Recipient receives from a third party without restriction on disclosure and
without breach of a non-disclosure obligation.
(c) Survival of Obligations Notwithstanding the termination of this Agreement, the non-disclosure and non-use
obligations set forth above will remain in full force with respect to each item of confidential information of SCT and/or
NLI, without limitation as to time.
9. Indemnities
(a) Indemnity by Licensee Licensee agrees to indemnify SCT and hold it harmless against and from any claim,
demand, action, proceeding, loss, liability, cost and expense (including without limitation court costs and reasonable fees
of attorneys, accountants and other professionals) incurred or suffered by SCT as a result of: (i) any violation by Licensee
of the obligations, restrictions or limitations in this Agreement or of any of SCT's or NLI's Intellectual Property Rights; or
(ii) the use, performance, quality, condition, service,maintenance or support of the NLI Software, in whole or in part.
(b) Indemnity by SCT. SCI' will defend or settle, at its own expense, any action brought against Licensee to the
extent that it is based on a claim that use of the BANNERQuest Software and/or the NLI Software provided by SCT pursuant
to this Agreement infringes any United States copyright of others, and SCI' will pay any costs, damages and attorneys' fees
finally awarded against Licensee in any such action attributable to any such claim; but such defense, settlements and
payments are expressly conditioned on the following: (i) that SCT is notified promptly in writing by Licensee of any such
claim; (ii) that SCT is granted in writing sole control of the defense of any such claim and of all negotiations for its
settlement or compromise; (iii) that Licensee cooperates with SCT in a reasonable way to facilitate the settlement or
defense of the claim; (iv)that the claim does not arise from modifications not authorized in writing by SCT or from the use
or combination of products provided by SCI' with items provided by Licensee or others; and (v) that should the
BANNERQuest Software and/or the NLI Software become, or in SCT's opinion be likely to become, the subject of such a
claim of infringement, then Licensee will permit SCT, at SCT's option and expense, (A) to procure for Licensee the right to
continue using the same under the terms of this Agreement,or(B) to modify (or, in the case of the BANNERQuest Software,
to replace) the same so that it becomes non-infringing and substantially equivalent in function, or (C)to refund to Licensee
the license fee paid to SC'by Licensee under this Agreement for the BANNERQuest System and/or the NLI Software therefor
giving rise to the liability (as applicable), less a charge for use by Licensee based on straight line depreciation assuming a
useful life of five (5) years. THE FOREGOING IS SCT'S EXCLUSIVE OBLIGATION WITH RESPECT TO
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
10. Term and Termination. This Agreement will continue in full force and effect except as follows:
(a)Termination by SCT SCT will have the right to terminate this Agreement if: (i) Licensee fails to honor the
restrictions on disclosure and use of SCT's confidential information provided under this Agreement; (ii) Licensee infringes
or participates in infringement of SCT's Intellectual Property Rights and/or NLI's Intellectual Property Rights; (iii)
Licensee fails to honor the limitations and restrictions on use of the BANNERQuest Software and/or the NLI Software, or
any part thereof, as provided in this Agreement; (iv) Licensee files a voluntary petition in bankruptcy or remains an
Weld County BQ Lic8/5/94 3:53 PM
4
involuntary petitioner in bankruptcy for a period exceeding ninety (90) days; or (v) Licensee breaches or fails to perform
any other material term or condition of this Agreement.
(b)Termination by Licensee Licensee will have the right to terminate this Agreement if: (i)SCT fails to honor the
restrictions on disclosure and use of Licensee's confidential information provided under this Agreement; or (ii) SCT
breaches or fails to perform any other material term or condition of this Agreement.
(c)Procedure for Terminations Either party may terminate this Agreement at any time while the event or condition
giving rise to the right of termination exists, by giving the other written notice describing that event or condition in
reasonable detail. Upon receipt of that notice, the other party will have a period of thirty(30)days in which to cause that
event or condition to be corrected or cured to the reasonable satisfaction of the party desiring termination. If the event or
condition giving rise to the right of termination is not so corrected or cured within that period, this Agreement will
terminate as of the end of that period automatically, without further act by any party. Notwithstanding the foregoing,
however, in the event that Licensee files a voluntary petition in bankruptcy or remains an involuntary petitioner in
bankruptcy for a period exceeding ninety (90) days, SCT shall have the right to terminate this Agreement immediately,
without further action or delay, by providing Licensee with written notice of such termination.
(d)Effect of Termination If this Agreement is properly terminated by either party, Licensee promptly will return to
SCT or(at SCT's request)destroy all copies of the BANNERQuest Software and the NLI Software,and will certify to SCT in
writing, over the signature of a duly authorized representative of Licensee, that it has done so.
(e) Survival of Obligations All obligations relating to non-use and non-disclosure of confidential information,
indemnity, and the obligations of Licensee to respect the Intellectual Property Rights of SCT and NLI will survive
termination of this Agreement for any reason.
(f)Termination Without Prejudice to Other Rights and Rem-dies, Termination of this Agreement by either SCT or
Licensee in accordance with the terms of this Agreement will be without prejudice to the terminating party's other rights
and remedies under or in connection with this Agreement, both at law and in equity.
11. Notices All notices and other communications required or permitted under this Agreement will be in writing and,
except as otherwise provided in this Agreement, will be deemed given when delivered personally, sent by United States
registered or certified mail, return receipt requested, or sent by overnight courier to the address shown on the signature page
hereof, or to such other place as the parties hereto from time to time may direct. A copy of all notices to SCT shall also be
sent to the attention of SCT's General Counsel at 4 Country View Road, Malvern, Pennsylvania 19355.
12. Force Maleure, Neither party to this Agreement will be liable to the other for any failure or delay in
performance under this Agreement due to circumstances beyond its reasonable control including, without limitation, Acts
of God, accident, labor disruption, acts, omissions and defaults of third parties, and official, governmental and judicial
action not the fault of the party failing or delaying in performance.
13. Assignment The benefits and burdens of each party under this Agreement will not be assignable without the
prior written consent of the other party to this Agreement, and any attempt to assign them without that consent will be
void. Notwithstanding the foregoing, SCT may assign this Agreement to its successor by merger or consolidation or to
any person or entity that acquires all or substantially all of its capital stock or assets; and SCT may assign this Agreement
in whole or in part to any person or entity to which it transfers any exclusive rights in the BANNERQuest Software.
14. No Waiver, No failure of either party to this Agreement to prosecute its rights with respect to any single or
continuing breach of this Agreement will act as a waiver of the right of that party to later exercise any right or enforce any
remedy granted under this Agreement with respect to that same or any other breach of this Agreement by the other party to
this Agreement.
15. Chnice of Law: Severabtlity, This Agreement will be governed by and construed in accordance with the laws
of the State of Colorado. If any provision of this Agreement is found invalid or unenforceable, it will be enforced to the
maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be
affected.
16. LIMITATIONS OF LIABILITY, SCT AND LICENSEE ACKNOWLEDGE AND AGREE THAT IN
NO EVENT WILL SCT'S LIABILITY IN CONNECTION WITH THE BANNERQUEST SOFTWARE, THE
NLI SOFTWARE, THE SERVICES PROVIDED UNDER THIS AGREEMENT, THIS LICENSE, OR ANY
OTHER MATTER RELATING TO THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY PAID TO SCT
BY LICENSEE UNDER THIS AGREEMENT FOR THE LICENSE FEE FOR THE BANNERQUEST SYSTEM
AND THE NLI SOFTWARE GIVING RISE TO THE LIABILITY AND SCT WILL NOT BE LIABLE FOR
ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
Weld County BQ Lic8/5194 3:53 PM
5
LIMITATION LOSS OF PROFITS, LOSS OF DATA, AND LOSS OF REVENUES, EVEN IF INFORMED
OF THE POSSIBILITY THEREOF IN ADVANCE. THESE LIMITATIONS APPLY TO ALL CAUSES OF
ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT,
BREACH OF WARRANTY, SCT'S NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND
OTHER CAUSES OF ACTION BASED ON SIMILAR LEGAL THEORIES. SCT AND LICENSEE
FURTHER ACKNOWLEDGE AND AGREE THAT THEY ARE ENTERING INTO THIS AGREEMENT ON
THE UNDERSTANDING THAT THE FEES FOR THE BANNERQUEST SOFTWARE, THE NLI
SOFTWARE, AND THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT HAVE BEEN SET TO
REFLECT THE FACT THAT LICENSEE'S REMEDIES, AND SCT'S LIABILITY, SHALL BE LIMITED AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, AND IF NOT SO LIMITED, THE FEES FOR THE
SAME WOULD HAVE BEEN SUBSTANTIALLY HIGHER.
17. Entire Agreement This Agreement sets forth the entire agreement between the parties with respect to the
subject matter hereof, and all prior discussions, representations, proposals, offers and oral or written communications of
any nature are entirely superseded hereby and extinguished by the execution of this Agreement. Any purchase order or
similar document which may be issued by Licensee in connection with the BANNERQuest Software, the NLI Software, the
license thereof, the services provided, or any other matter relating to this agreement shall be for Licensee's internal
purposes only and any terms and conditions which may be included in such purchase order or other document shall not
modify in any manner any of the terms and conditions of this Agreement and shall not bind SCT in any manner and shall be
completely ineffective and unenforceable against SCI', even if it is initialed, signed, or acknowledged by a representative
of SCT. No modification hereof or waiver of any right under this Agreement will be effective unless it is evidenced in a
writing executed by an authorized representative of each party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, through the signatures of their duly authorized
representatives.
Effective Date:
SP IS , C. WELD COUM'Y,COLOR
By: By: /Jf&J /AJjj41
R h d A. Blre id n a W `�
Senior Vice President (/ 1/li/�YJS (f'C"/)'L
962 Delaware Avenue (Print Name of Signatory)
Lexington, KY 40505
Title: /9-/ Z ) , ?,1
915 10th Street, 3rd Floor
Greeley, Colorado 80631
Weld County BQ Lic8/5/94 3:53 PM
6
FJCHIBIT P
pavment Schedule
Licensee's cost for the license of the BANNERQuest Software, the NLI Software,and the services rendered pursuant to
this Agreement is as follows:
Deliverable CUSI
BANNERQuest Finance System with NLI Software $12,560
Implementation/Suwort Services'
BANNERQuest Finance System(one(1)person-day) $760
Payment of the license fee for each BANNERQuest System with NLI Software shall be made by Licensee to SCT as
follows: thirty (30%)percent upon the Effective Date; an additional forty (40%) percent within ninety (90) days from the
Delivery Date of the applicable Major System; and the remaining thirty (30%) percent within one hundred eighty (180)
days after the Delivery Date of the applicable BANNERQuest System with NLI Software.
Implementation and Support Services and Customization Services (Exhibit CS) shall be invoiced monthly, as such
services are rendered, together with travel, living, freight, and overnight delivery expenses, and shall be paid by Licensee
to SCT by not later than thirty(30)days from the date of invoice therefor.
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7
FYI-11BIT CS
Customization Services
I. Generation of Specifications for Modifications to BANNEROuest Software
A. Interview Licensee personnel to determine changes desired to be made to BANNERQuest Software as delivered by
SCT.
B. Generate revised functional and technical specifications in a System Modification Requirements ("SMR")
document, which will also contain cost and schedule estimates for SCT to implement such changes.
II. Modifications
SCT will modify and test the BANNERQuest Software to the extent proposed in any SMR document generated pursuant to
the provisions of this Exhibit CS.
III. Rate - The rate of $95 per hour shall apply for one (1) year from the Effective Date, after which time SCT may
increase such rates upon notice to Licensee.
Weld County BQ Lic8/5/94 3:53 PM
S
SCT TECHNICAL CURRENCY AGREEMENT
This Agreement is entered into by and between SCT Public Sector, Inc. ("SCT") and Weld County, Colorado
("Licensee") on August , 1994.
Background
SCT and Licensee have entered into a Software License and Services Agreement Number 11159 (the "SCT License
Agreement") for the Licensed Software described in the SCT License Agreement. Licensee desires that SCT provide
Maintenance and Enhancements for the Licensed Software on the terms and conditions contained in this Agreement.
Accordingly, the parties agree as follows:
1. Certain Definitions
(a)Definitions Contained in the SCT License Agreement, The capitalized terms of this Agreement will have the
same meanings ascribed to them in the SCT License Agreement, except as such terms are otherwise defined in this
Agreement.
(b)Additional Definitions The following defmitions shall also apply:
(i)"Maintenance means using reasonable efforts to correct documented defects,as that term is defined in
the SCT License Agreement, in a TCP System, provided that such defects are not the result of any changes made to the
Licensed Software,other than Improvements provided by SCT under this or the Database Software Agreement.
(ii) "Enhancements" means changes to a TCP System which increase the functionality of the TCP
System.
(iii) "SCT Software" means SCT's then current unmodified (other than Improvements provided by SCT
under this Agreement)BANNER Finance(excluding the Investment Management Module)and FOCUS Express for BANNER
Finance Major System licensed by SCT to Licensee under the SCT License Agreement.
(iv)FOCUS Software"means the SCT then-supported unmodified (other than Improvements provided by
SCT under this Agreement) version of the computer programs developed by Information Builders, Inc. identified in the SCT
License Agreement.
(v)Database Software" means the SCT then-supported unmodified (other than Improvements provided by
SCT under this Agreement)version of the computer programs developed by Oracle identified in the SCT License Agreement.
(vi) "TCP System" means any one of the Major Systems of the SCT Software identified in Section
1(bXiii)above, the FOCUS Software or the Database Software.
(vii) "New Releases" means new editions of a TCP System which represent changes from the previous
releases of that TCP System.
(viii) "Improvements" means, collectively, Maintenance, Enhancements and New Releases provided
under this Agreement.
(c)Inconsistencies. If there are any inconsistencies between the definitions contained in this Agreement and the
definitions contained in the SCT License Agreement, the definitions contained in this Agreement shall apply.
2. Services
(a)Types of Services In consideration of Licensee's full payment to SCT of the amounts set forth in Section 3
below, and subject to the terms and conditions set forth in this Agreement, sm., during the term of this Agreement, agrees
to provide to Licensee Maintenance for, Enhancements of, and New Releases of, each TCP System. Subject to the
availability of SCT personnel, at Licensee's written request. SCT shall perform any installation, implementation, or other
services in connection with the Maintenance, Enhancements, and New Releases provided by SCT under this Agreement, at
SCT's then-current hourly rates.
(b) Limitations. SCT's obligations under this Agreement will be limited to the then current release and the
immediately preceding release of each TCP System. All Improvements will be part of the TCP System and subject to all of
Weld County FocLOTCP 8/5/94 3:47 PM
the terms and conditions of the SCT License Agreement and this Agreement. SCTs obligation to provide Licensee with
Improvements for the FOCUS Software and/or the Database Software, as applicable, shall be limited to providing Licensee
with such Improvements as Information Builders, Inc. provides to SCT for the FOCUS Software and Oracle Corporation
provides to SCT for the Database Software. SCT's obligations under this Agreement are further conditioned upon Licensee
providing SCT, as reasonably necessary for SCT to perform its obligations under this Agreement, with all of the following
without charge: (i) the Licensee Environment provided and maintained at Licensee's expense, in good working order and in
actual operation at all times at which SCT reasonably requests access thereto for the purpose of rendering the services under
this Agreement; (ii) the right for SCT to use the Licensee Environment (including all related software); (iii) remote
electronic capabilities, if available from Licensee; (iv) access to other computer systems of Licensee; (v) access to
Licensee's offices and personnel; and (vi) a reasonable amount of space on Licensee's premises, including parking space,
for SCT personnel.
(c)Modifications Maintenance. Subject to the availability of SCT personnel, at Licensee's written request, SCT
shall provide Maintenance in connection with any modifications made by SCT to the SCT Software (other than
Improvements provided under this Agreement) at SCI's then-current hourly rates.
3. Payment and Taxes
(a)Technical err n y Fee„ For the Improvements provided by SCT under this Agreement, Licensee will pay
SCT,on September 1, 1995, a fee of$23,754, and on each September 1 thereafter during the term of this Agreement, a fee
specified by SCT which will not be more than one hundred ten percent (110%) of the fee due under this Agreement on the
immediately preceding September 1.
(b) Additional Costs. If SCT, in its reasonable judgment, determines that a suspected defect is attributable to a
cause other than a documented defect, as that term is defined in the SCT License Agreement, in a TCP System, then Licensee
shall pay SCT an additional amount for its work performed in connection therewith on a per-hour basis, at SCI's then-
current hourly rates. Licensee will also reimburse SCT for all travel, living, freight, and overnight delivery expenses
incurred by SCT and/or its personnel in connection with any services provided by SCT in connection with this Agreement.
(c)Taxes. Taxes, other than taxes based on SCT's net income or capital stock, imposed by any taxing authority
and based upon or in any way relating to this Agreement, the Improvements or services provided or payments made under
this Agreement shall be the responsibility of Licensee and shall be payable in addition to other fees and charges under this
Agreement. If Licensee is a tax-exempt entity and not subject to any taxes, within five (5) days after the Effective Date
Licensee may provide SCT, in lieu of paying any such tax required to be paid by Licensee, with a certificate of exemption in
connection with all federal and state taxes in form and substance reasonably satisfactory to SCT; otherwise, SCT shall
invoice Licensee and Licensee shall pay to SCT all taxes required to be paid under or in connection with this Agreement.
(d)Late Charges. All amounts not paid when due shall bear interest at a rate of interest per annum equal to the
lesser of the prime rate established from time to time by Mellon Bank, N. A., Philadelphia, Pennsylvania plus three (3%)
percent or the highest rate permitted by law.
4. Term The initial term of this agreement is for the period commencing on the date set forth on the first page of
this Agreement and continuing until September 30, 1997. This Agreement shall thereafter be automatically extended for
consecutive one (1) year periods unless either party notifies the other in writing of its intent not to continue this
Agreement at least one year prior to the expiration of the then current term.
5. Disclaimer of Warranties. Licensee agrees and understands that except as expressly set forth in this Agreement
SCT MAKES NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, WITH REGARD TO ANY
IMPROVEMENTS, AND THAT SCT EXPLICITLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, SCT EXPRESSLY
DOES NOT WARRANT THAT A TCP SYSTEM OR ANY IMPROVEMENTS WILL BE USABLE BY
LICENSEE IF THE TCP SYSTEM HAS BEEN MODIFIED BY ANYONE OTHER THAN SCT, OR WILL BE
ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL BE COMPATIBLE WITH ANY
HARDWARE OR SOFTWARE (OTHER THAN THE LICENSEE ENVIRONMENT) POSSESSED OR TO BE
POSSESSED BY LICENSEE.
6. Termination. Either party will have the right to terminate this Agreement if the other party breaches or fails to
perform any material term or condition of this Agreement. Either party, if it has a right of termination as provided above,
may terminate this Agreement at any time while the event or condition giving rise to that right of termination exists, by
giving the other written notice of that event or condition and describing that event or condition in reasonable detail. Upon
receipt of that notice, the other party will have a period of thirty (30) days in which to cause that event or condition to be
corrected or cured to the reasonable satisfaction of the party desiring termination. If the event or condition giving rise to
the right of termination is not so corrected or cured within that period, this Agreement will terminate as of the end of that
Weld County FocLOTCP 8/5/94 3:47 PM 2
period automatically, without further act by any party. Notwithstanding the foregoing, however, in the event that Licensee
files a voluntary petition in bankruptcy or remains an involuntary petitioner in bankruptcy for a period exceeding ninety
(90)days, SCT shall have the right to terminate this Agreement immediately, without further action or delay, by providing
Licensee with written notice of such termination. Termination of this Agreement by either party in strict accordance with
the terms and conditions of this Agreement will be without prejudice to the terminating party's other rights and remedies
under this Agreement, both at law and in equity.
7. Notices. All notices and other communications required or permitted under this Agreement will be in writing and,
except as otherwise provided in this Agreement, will be deemed given when delivered personally, sent by United States
registered or certified mail,return receipt requested, or sent by overnight courier to the address shown on the signature page
hereof,or to such other place as the parties hereto from time to time may direct. A copy of all notices to SCT shall also be
sent to the attention of SCTs General Counsel at SCTs address set forth on the signature page.
8. force Maieure Neither party to this Agreement will be liable to the other for any failure or delay in performance
under this Agreement due to circumstances beyond its reasonable control including, without limitation, Acts of God,
accident, labor disruption, acts, omissions and defaults of third parties, and official, governmental and judicial action not
the fault of the party failing or delaying in performance.
9. Assignment The benefits and burdens of each party under this Agreement will not be assignable without the
prior written consent of the other party to this Agreement, and any attempt to assign them without that consent will be
void. Notwithstanding the foregoing, SCT may assign this Agreement to its successor by merger or consolidation or to
any person or entity that acquires all or substantially all of its capital stock or assets: and SCT may assign this Agreement
in whole or in part to any person or entity to which it transfers any exclusive rights in the SCT Software.
10. No Waiver No failure of either party to this Agreement to prosecute its rights with respect to any single or
continuing breach of this Agreement will act as a waiver of the right of that party to exercise later any right or enforce any
remedy granted under this Agreement with respect to that same or any other breach of this Agreement by the other party to
this Agreement.
11. Choice of Law: Severability This Agreement will be governed by and construed in accordance with the laws of the
State of Colorado. If any provision of this Agreement is found invalid or unenforceable, it will be enforced to the maximum
extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.
12. JIMITATIONS OF LIABILITY SCT AND LICENSEE ACKNOWLEDGE AND AGREE THAT IN
NO EVENT WILL SCT'S LIABILITY IN CONNECTION WITH THE IMPROVEMENTS OR SERVICES
PROVIDED UNDER THIS AGREEMENT, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT,
EXCEED THE AMOUNT ACTUALLY PAID TO SCT BY LICENSEE UNDER THIS AGREEMENT FOR THE
IMPROVEMENTS IN THE YEAR THAT SUCH LIABILITY ACTUALLY ARISES, AND SCT WILL NOT
BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING
WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF DATA, AND LOSS OF REVENUES, EVEN IF
INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE. THESE LIMITATIONS APPLY TO ALL
CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF
CONTRACT, BREACH OF WARRANTY, SCT'S NEGLIGENCE, STRICT LIABILITY,
MISREPRESENTATION, AND OTHER CAUSES OF ACTION BASED ON SIMILAR LEGAL THEORIES.
SCT AND LICENSEE FURTHER ACKNOWLEDGE AND AGREE THAT THEY ARE ENTERING INTO
THIS AGREEMENT ON THE UNDERSTANDING THAT THE FEES FOR THE IMPROVEMENTS AND
SERVICES TO BE PROVIDED UNDER THIS AGREEMENT HAVE BEEN SET TO REFLECT THE FACT
THAT LICENSEE'S REMEDIES, AND SCT'S LIABILITY, SHALL BE LIMITED AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, AND IF NOT SO LIMITED, THE FEES FOR THE SAME WOULD HAVE
BEEN SUBSTANTIALLY HIGHER.
13. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the subject
matter hereof, and all prior discussions, representations, proposals, offers and oral or written communications of any nature
are entirely superseded hereby and extinguished by the execution of this Agreement. Any purchase order or similar
document which may be issued by Licensee in connection with the Improvements or the services provided under, or any
other matter relating to, this Agreement shall be for Licensee's internal purposes only and any terms and conditions which
may be included in such purchase order or other document shall not modify in any manner any of the terms and conditions of
this Agreement and shall not bind SCT in any manner and shall be completely ineffective and unenforceable against SCT,
even if it is initialed,signed,or acknowledged by a representative of SCT. No modification of, or waiver of any right under,
this Agreement will be effective unless it is evidenced in a writing executed by an authorized representative of each party to
this Agreement.
Weld County FocLOTCP 8/5/94 3:49 PM 3
IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement through the signatures of
their duly authorized representatives.
SCI' UB S R, WELD COUNTY,COLORADO
By: •
BBy: / /
hard A. Blumenthal -)
Senior Vice President S
962 Delaware Avenue (Prin Name of Signatory)
Lexington, KY 40505 )
Title:
5 10th Street, 3rd Floor
Greeley, Colorado 80631
Weld County FocLOTCP 8/5/94 3:49 PM 4
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