HomeMy WebLinkAbout971780.tiffDIGITAL
INSPECTIONS
AGREEMENT
This Agreement is between Digital Inspections, a Division of Xenergy, Inc, hereinafter referred
to as "Digital" and Weld County, Colorado hereinafter referred to as "County".
RECITALS
Digital has licensed TNG Environmental Health Inspection System Single User BaseStation
Software version 1.44 for Windows 3.1X and two Digital Inspections TNG Environmental
Health Inspection System Concurrent User BaseStation Software License version 1.44 for
Windows 3.1X ( hereinafter "TNG software"). Digital will provide TNG II Environmental
Health Inspection System Single User BaseStation Software for Windows '95 and two Digital
Inspections TNG II Environmental Health Inspection System Concurrent User BaseStation
Software License for Windows 95 ( hereinafter "TNG II software") under a similar license . This
Agreement is in addition to such licensing and is intended to cover training, support and
upgrades in addition to those services included in the TNG software license .
The parties therefore agree as follows:
1. Digital agrees to provide TNG software support consultation services via 800
service line until TNG is replaced by TNG II. Digital agrees to perform TNG II software problem
resolution service and software update service by means of the following commencing 90 days
after successful installation of the TNG II software:
a. Provide County with a reasonable amount of consultation by telephone to assist
the County in software problem resolution, during Digital's normal working hours.
b. Provide County with remedial maintenance of software to substantially conform
the software to Digital's published program specification for that release level of software
identified in the most current release.
c. Digital shall, within a reasonable time period, use it's best effort to correct any
reproducible error on TNG II provided that Digital's diagnostics indicate that such
nonconformity or error was in existence during the subscription period or during the initial
warranty period. The provision of error correction services is expressly contingent upon (I)
County promptly reporting any errors in the software or documentation to Digital; (II) County
not modifying the software without the expressed written permission of Digital; and (III) County
utilizing the software only as authorized under the applicable License Agreement. In the event
that after investigation it is demonstrated by Digital that the reported error or malfunction was
not caused by Digital's coding of the software, Digital shall charge County at it's regular daily
rates for time spent by it in investigating the alleged error or malfunction.
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Digital ns
i pcttiions • 800 N.W. Starker Avenue • Corvallis, Oregon 97330 • Phone (541) 752-7233 • Fax: (541) 758-3666
a�/ / A Division of Xenergy Inc. • Offices throughout the United States and Canac Q-OD.2.4
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d. Provide County all enhancements released by Digital's standard enhancements,
and which are generally made available to other users purchasing comparable software during the
term of this agreement. Any changes, additions or enhancements provided by Digital hereunder
shall remain the licensed property of Digital.
e. Digital's cumulative liability to County or any other party for any loss or damages
resulting from any claims, demands, or actions arising out of or relating to this Agreement shall
not exceed the support fee paid to Digital. In no event shall Digital be liable for any indirect,
incidental, consequential, special, or exemplary damages or lost profits, even if Digital has been
advised of the possibility of such damages.
2. Digital will provide TNG II Environmental Health Inspection System Single User
BaseStation Software Version for Windows '95 for one basestation and two Digital Inspections
TNG II Environmental Health Inspection System Concurrent User BaseStation Software License
for Windows 95 (herein referred to as TNG II software) under a similar license at no additional
charge when such upgrade becomes available, exclusive of data conversion and training services.
3. County agrees to pay the sum of $3,240.00 for the first year's software support as
described in paragraph 2 herein which is based upon fifteen per cent (15%) of the software
license costs. Subsequent annual software support fees will be based on fifteen per cent (15%) of
the then current published software price for applicable software; not to exceed a three percent
(3%) increase for support fees in any given year from the previous year.
4. County agrees to pay the amount of $960.00 per day per trainer for TNG
Environmental Health Inspection System installation and training for a time period not to exceed
three days.
5. The term of this Agreement shall commence from date of satisfactory installation
and shall continue for one year and ninety days following . Thereafter, the Agreement may be
renewed on a yearly basis, if mutually agreed upon by both parties.
6. Payment for software maintenance services is to be paid in advance for the initial
term and each yearly renewal. No refunds will be paid for unused support if County terminates
using support services.
7. Custom programming/consulting or additional software problem resolution
service will be billed in addition to the yearly software maintenance and will be billed at
Digital's prevailing rate.
8. This Agreement shall constitute the complete agreement between the parties and
no amendments to this Agreement shall be binding unless memorialized in a writing signed by
both parties.
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9. If any term or condition of this Agreement shall be held to be invalid, illegal, or
unenforceable, this Agreement shall be construed and enforced without such provision to the
extent that this Agreement is then capable of execution within the original intent of the parties
hereto.
10. It is expressly understood and agreed that the enforcement of the terms and
conditions of this Agreement, and all rights of action relating to such enforcement, shall be
strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any
claim or right of action whatsoever by any other person not included in this Agreement. It is the
express intention of the undersigned parties that any entity other than the undersigned parties
receiving services or benefits under this Agreement shall be an incidental beneficiary only.
11. This Agreement contains the entire agreement and understanding between the
parties to this Agreement and supersedes any other agreements concerning the subject matter of
this transaction, whether oral or written. No modification, amendment, novation, renewal, or
other alteration of or to this Agreement shall be deemed valid or of any force or effect
whatsoever, unless mutually agreed upon in writing by the undersigned parties. No breach of
any term, provision, or clause of this Agreement shall be deemed waived or excused, unless such
waiver or consent shall be in writing and signed by the party claimed to have waived or
consented. Any consent by any party hereto, or waiver of, a breach by any other party, whether
express or implied, shall not constitute a consent to, waiver of, or excuse for any other different
or subsequent breach.
12. Any notice provided for in this Agreement shall be in writing and shall be served
by personal delivery or by certified mail, return receipt requested, postage prepaid at the
addresses set forth in this Agreement until such time as written notice of a change is received
from the party wishing to make a change of address. Any notice so mailed and any notice served
by personal delivery shall be deemed delivered and effective upon receipt or upon attempted
delivery. This method of notification will be used in all instances, except for emergency
situations when immediate notification to the parties is required.
13. It is agreed by both parties that any causes of action arising out of this Agreement
shall be venued in the courts of Weld County, Colorado, or the United States District Court for
the District of Colorado to the extent that those courts are reposed with subject matter
jurisdiction. Both parties agree to submit themselves to the personal jurisdiction of those courts.
14. This Agreement shall be construed in accordance with the laws of the state of
Colorado.
15. Nothing contained herein shall imply an employer - employee relationship, a joint
venture, partnership, or other association between County and Digital. Neither this Agreement
nor the rights granted by it shall be assigned, transferred or delegated by either party without
express written authorization which authorization shall not be unreasonably withheld.
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16. Any notices required hereunder shall be addressed as follows:
The County: with a copy to:
Board of Weld County Weld County Attorney
Commissioners P.O. Box 1948
P.O. Box 758 915 10th Street
915 10th Street Greeley, CO 80632
Greeley, CO 80632
Digital: Digital Inspections
800 N.W. Starker Avenue
Corvallis, OR 97330
971780
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IT WITNESS WHEREOF, the parties have hereunto set their hands and seals this?/
day of —.T— , 1997.
ATTEST: / u fru COUNTY OF WELD, STATE OF
COLORADO, BY AND THROUGH THE
BOARD OF COUNTY COMMISSIONERS
BY: Li/Li OF THE COUNTY OF WELD
Deputy Clerk to the Boar
Approvet s to F
e T. B. `e
eld County Attorney
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BY
S f_
Georg{E. Baxter, Chairman 001/9T
DIGITAL INSPECTIONS
XENERGY
BY:
TITLE: President
a division of
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INSPECTIONS
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