HomeMy WebLinkAbout20181527.tiffcc 44/769
MEMORANDUM
TO: Esther Gesick, Clerk to the Board May 2, 2018
FROM: Ryan Rose, Chief Information Officer
SUBJECT: Cartegraph Systems, LLC. Licenses and Upgrade
SOW
Cartegraph Systems, LLC. provides software to our Public Works department which
they utilize to manage the their daily maintenance and inspection work for the roads,
bridges, etc. The current version of software we are using is being sunset. The
vendor has a new upgraded version available. This agreement is to upgrade to the
new supported version of their software. The requested amount is $102,555.20 for
the licenses and implementation of this upgraded version. This was budgeted for in
the Public Works department's budget.
We ask that the BOCC approve the agreement as submitted.
1
2018-1527
�Tooa7
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/ WORK SESSION REQUEST
RE: Cartegraph Systems, LLC
DATE: April 25, 2018
DEPARTMENT: Information Technology rese....._
PERSON REQUESTING: Ryan Rose
Brief description of the problem/issue:
Cartegraph Systems, LLC provides software to Weld County for public works functions. The software is used
by the Public Works department to help manage their daily maintenance work for the roads, bridges, etc.
The current version of the software we are using is being sunset. The vendor has a new upgraded version
available. The attached request is to acquire the new version and perform an upgrade.
What options exist for the Board? (Include consequences, impacts, costs, etc. of options)
This provider specializes in selling and supporting this software. Because the existing version is being sunset, it
is recommended that we upgrade to remain on a supported version.
Recommendation:
Legal has reviewed and approved this agreement and it was budgeted for fiscal 2018. We recommend the Board
approve the request for $102,555.20.
Steve Moreno, Chair
Sean P. Conway
Mike Freeman
Barbara Kirkmeyer
Julie Cozad
Approve
Recommendation
✓yoct emur l
Schedule
Work Session
Other/comments:
Karla Ford
From:
Sent:
To:
Subject:
Steve Moreno
Monday, April 30, 2018 11:32 AM
Karla Ford
Re: Cartegraph Systems LLC
Agree with recommendation
Sent from my iPhone
On Apr 30, 2018, at 11:01 AM, Karla Ford <kfordweldgov.com> wrote:
Please review
Karla Ford
Office Manager Board of Weld County Commissioners
1150 O Street, P.O Box 758 Greeley, Colorado 80632
:: 970.336-7204 :: kford + weldgov.00m :: www.we!dgpv,com
My working hours are Monday -Thursday 7:00a.m.-4:00 p.m.
Friday 7:00a.m. - Noon
<image004.jpg>
Confidentiality Notice: This electronic transmission and any attached documents or other writings ore intended only for the person or entity to
which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received
this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying,
distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named
recipient is strictly prohibited.
From: Mary Truslow
Sent: Thursday, April 26, 2018 12:57 PM
To: Karla Ford <kfordl weldgov.coni>
Cc: Ryan Rose <rrose@weldgay.corn>
Subject: FW: Attached Image
Good afternoon Karla,
Attached is the pass -around for the upgrade to the Cartegraph System. Please let me know if you have
any questions.
Thanks, Mary
Mary Truslow
Director of Applications & Database Services
Department of Information Technology
Weld County Government
1401 N. 17th Ave Greeley, CO 80631
tel: 970-400-2518
mtruslpw@co.weld.co.us
Purchase Agreement
Cartegraph is pleased to present this Purchase Agreement for the implementation of world class technology solutions.
This Purchase Agreement is made and entered into between Weld County (hereinafter referred to as "Customer" and
Cartegraph Systems LLC (hereinafter referred to as "Cartegraph. In the case that any terms or conditions provided in
the Cartegraph Solutions Agreement differ from, are provided in more detail by, or are made irrelevant by the terms and
conditions provided in this Purchase Agreement, the terms in this Purchase Agreement shall control. For all terms and
conditions not addressed by this Purchase Agreement, the Cartegraph Solutions Agreement shall control.
Customer Bill
To:
Customer Ship
To:
1111
Weld
Greeley,
County
H
Street
CO
80632
Same
Investment Summary
The Addendums attached hereto, include:
Addendum A — Support Services
Addendum B - Field Services
Cartegraph's proposed fees for this project are included in the summary below
Today's Date: April 23, Signature May 30, 2018
2018 Expiration Date:
Purchase #PA704
Agreement No.:
Purchase
Type
f
Qty.
i
Unit
Price
j Total
Price
YEAR 1
SOLUTIONS
Cartegraph
Platform
by
OMS
Domain
Transportation
Premise
Deployment,
Domain
Subscription,
6/4/18
—
6/3/19
On-
1
$11,000.00
$11,000.00
Cartegraph
Platform
by
OMS
Domain
Storm
Domain Subscription
1
$4,800.00
$4,800.00
$
Cartegraph
Extension
OMS
Advanced
Subscription
Asset
Management
L
1
$8,250.00
$8,250.00
Cartegraph
Extension
OMS
Offline
with
Cartegraph
for
iPad
1
$2 405.20
$2,405.20
Cartegraph
Users
OMS
User Pack Subscription
Users
— 50
Named
1
$10,000.00
$10,000.00
FIELD SERVICES
Implementation
Services
Fixed
Fee Service
1
60 500.00
$60, 500.00
NOT TO EXCEED EXPENSES
$5,600.00
YEAR 1
SUB -TOTAL
$102,555.20
YEAR 2
SOLUTIONS
Cartegraph OMS
Platform by Domain
Transportation Domain Subscription, On-
Premise Deployment, 6/4/19 — 6/3/20
1
$11,000.00
$11,000.00
Cartegraph OMS
Platform by Domain
Storm Domain Subscription
1
$4,800.00
$4,800.00
Cartegraph OMS
Extension
Advanced Asset Management
Subscription
1
$8,250.00
$8,250.00
Cartegraph OMS
Extension
Offline with Cartegraph for iPad
1
$2,405.20
$2,405.20
Cartegraph OMS
Users
User Pack Subscription — 50 Named
Users
1
$10,000.00
$10,000.00
YEAR 2 SUB -TOTAL
$36,455.20
YEAR 3
SOLUTIONS
Cartegraph OMS
Platform by Domain
Transportation Domain Subscription, On-
Premise Deployment, 6/4/20 — 6/3/21
1
$11,000.00
$11,000.00
Cartegraph OMS
Platform by Domain
Storm Domain Subscription
1
$4,800.00
$4,800.00
Cartegraph OMS
Extension
Advanced Asset Management
Subscription
1
$8,250.00
$8,250.00
Cartegraph OMS
Extension
Offline with Cartegraph for iPad
1
$2,405.20
$2,405.20
Cartegraph OMS
Users
User Pack Subscription — 50 Named
Users
1
$10,000.00
$10,000.00
YEAR 3 SUB -TOTAL
$36,455.20
TOTAL COST
$175,465.40
Payment Terms and Conditions
In consideration for the Solutions and Services provided by Cartegraph to Customer, Customer agrees to pay
Cartegraph the Fees in U.S. Dollars as described below:
1. Delivery: Customer shall be provided with the ability to access and use the Solutions upon execution of this
Purchase Agreement. If applicable, Services will be scheduled and delivered upon your acceptance of this Purchase
Agreement, which will be considered as your notification to proceed.
2. Services Scheduling: Customer agrees to work with Cartegraph to schedule Services in a timely manner. All
undelivered Services shall expire 365 days from the signing of this Purchase Agreement.
3. Solutions Invoicing: The Fee for Solutions will be due in annual installments 15 days prior to the anniversary of the
initial term as follows:
a. $36,455.20 due upon execution of the Purchase Agreement.
b. $36,455.20 due 15 days prior to 1st year anniversary of term start date.
c. $36,455.20 due 15 days prior to 2nd year anniversary of term start date.
4. Field Services Invoicing: Invoicing for the Field Services fee shall occur upon the acceptance of this Purchase
Agreement and shall be invoiced as follows:
a. Invoicing for the Field Services will be due as follows:
a.25% upon execution of the Purchase Agreement.
b.25% at the completion of the Assessment/delivery.
c.25% at the Completion of the test deployment.
d.25% at the completion production deployment.
5. Expenses: In providing the services included in this Purchase Agreement, Cartegraph shall be reimbursed for
any reasonable out-of-pocket costs, including, but no limited to, travel, lodging, and meals. Out-of-pocket
expenses are billed based on actual costs incurred and are due separately.
6. Payment Terms: All payments are due Net 30 days from start date of invoice.
"Cartegraph acknowledges no payment in excess of the amounts listed above in Exhibit will be made by County unless a
"change order" authorizing such additional payment has been specificially approved by formal resolution of the Weld
County Board of County Commissioners, as required pursuant to the Weld County Code. Any other provision of this
Agreement notwithstanding, in no event shall County be liable for payment for services rendered and expenses incurred
by Contractor under the terms of this Agreement for any amount in excess of the sum of the bid amount set forth in above
Exhibit. Cartegraph acknowledges that any work it performs beyond that specifically authorized by County is performed at
Contractor's risk and without authorization under this Agreement. County shall not be liable for the payment of taxes, late
charges or penalties of any nature other than the compensation stated herein.
"Financial obligations of the County payable after the current fiscal year are contingent upon funds for that purpose being
appropriated, budgeted and otherwise made available. Execution of this Agreement by the County does not create an
obligation on the part of County to expend funds not otherwise appropriated in each succeeding year."
BY SIGNING BELOW, THE PARTIES AGREE THAT ALL USE AND ACCESS TO THE SOLUTIONS DESCRIBED IN
THIS PURCHASE AGREEMENT SHALL BE GOVERNED BY THE CARTEGRAPH SOLUTIONS AGREEMENT, WHICH
CAN BE REVIEWED AT: httos //w vw.cartes raoh.cOr/hosted-SoitlUons-agreerelt/. THE PARTIES AGREE
TO BE BOUND BY THE TERMS AND CONDITIONS OF THE CARTEGRAPH SOLUTIONS AGREEMENT AND THIS
PURCHASE AGREEMENT REFERENCED HEREIN.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first stated above.
CARTEGRAPH SYSTEMS LLC
By: Mitch Bradley
& Marketing
ATTEST. dd-4 ""'(1 BOARD OF COUNTY COMMISSIONERS
Weld . . ty Clerk to the Bo. d �WELD OUNTY, COLORADO
BY:
Pte>W2—,ef
Deputy Cler to a e :: ;,/'n ��'ii ve Moreno, Chair
MAY 092018
ozwer-/ 027
Cartegraph Systems LLC
Addendum A - Support Services
Cartegraph Support and Training Services — Scope of Work
The Support Services listed in the Investment Summary of the Purchase Agreement are specific Cartegraph Services
which will be delivered to the Customer based on the descriptions below and on the terms and conditions and subject to
the limitations set forth in this Addendum A, the applicable Purchase Agreement, and the Cartegraph Solutions
Agreement. Cartegraph will coordinate with the Customer on service delivery expectations and timeframes.
As part of Customer's subscription to access to and use of the Cartegraph Solutions, Customer will receive:
1. Support Services
a. Campus— www.cartegraph.com/campus
Our User Assistance area is a convenient and easily -shareable resource designed to help you and your co-
workers better understand the functions and capabilities of your Cartegraph Solutions. Instantly access user tips,
step-by-step guides, videos, and more.
b. Dedicated, Unlimited, Toll -free Phone Support- 877.647.3050
When questions need answers and difficulties arise, count on our industry -leading Support team to provide the
guidance and assistance you need. Reach us as often as you need Monday -Friday, 7:00 am -7:00 pm CT.
c. Secure, Live Remote Support
If your challenge requires a more hands-on approach, we have the remote support tools to fix it. Let one of our Support
Team members directly interact with your system to find a fast, effective solution.
2. Training & Education Services
a. Convenient Online Resources
All the information you need, one click away. Take advantage of online training opportunities, tutorial videos,
upcoming event information, and more.
b. Regional User Groups
Meet and network with similar Cartegraph users in your region. Our smaller, more personalized User Groups
allow you to find out what other organizations are doing to get more from their Cartegraph solutions and services.
3. Releases & Upgrades
a. New Releases
Be the first to know about all new Cartegraph releases, enhancements, and upgrades.
i. Your cloud -hosted site will be automatically upgraded by our System Consultants after the release is
available. This way, you'll experience increased system performance while gaining timely access to the
latest features and functionality.
11. For your on -Premises Installation, our Technical Consultants will work with your organization's IT staff to
receive the latest software release in a timely manner. This way, you'll experience increased system
performance while gaining prompt access to the latest features and functionality
b. Hot Fixes
If an issue is determined to be a defect and falls outside the standard release cycle, Cartegraph will issue a hot fix
and provide application specialists with detailed levels of product knowledge to work with you in achieving a timely
and effective resolution
Cartegraph will provide the Support Services only to Customer, provided that Cartegraph reserves the right to contact any
third party as necessary to facilitate the delivery of Support Services or other services relating to the Solutions.
All Support Services are dependent upon the use by Customer of the Solutions in accordance with Cartegraph's
documentation and specifications. Cartegraph is under no obligation to modify the Solutions so that the modified
Solutions would depart from Cartegraph's published documentation and specifications for such Solutions.
Cartegraph Systems LLC
Addendum B - Field Services (Fee for Service)
Cartegraph Field Services — Scope of Work
The Field Services listed in the Investment Summary of the Purchase Agreement are specific Cartegraph Services which
will be delivered to the Customer based on the descriptions below and on the terms and conditions and subject to the
limitations set forth in this Addendum B, the applicable Purchase Agreement, and the Cartegraph Solutions Agreement.
Cartegraph will coordinate with the Customer on service delivery expectations and timeframes.
Cartegraph OMS — Implementation Scope of Work
Implementation of the Operations Management System (OMS) includes the following professional services:
Setup
Cartegraph will provide a review, typically up to two (2) hours, of our technical specifications with your
technical staff to answer any questions and verify your environment is ready for the software's installation.
• Cartegraph will guide your technical staff through the installation and setup of Cartegraph software in your
test and/or production environment.
• Cartegraph will provide an overview, up to two (2) hours, of Cartegraph and ArcGIS Online user -based
logins and User/Role functionality.
Cartegraph will provide a template file to be utilized by your staff to populate Roles and Users to be
utilized for OMS.
• Cartegraph will utilize the template to create users and roles in OMS. (Note: Subsequent User and/or
Role changes will be your administrator's responsibility.)
• Cartegraph will provide documentation and guidance, up to four (4) hours, for your technical GIS staff to
configure Esri Basemap Services for OMS integration. Guidance will be geared towards OMS/Esri
integration functionality and requirements.
• Cartegraph will setup the OMS Platform, including the Request, Work, Resource, and Asset Management
areas of the software. Asset Management solutions will be setup for all solutions referenced in the Assets
section of the scope unless otherwise noted.
Consulting
Cartegraph will provide a three-day (3 -day) onsite requirement gathering workshop to increase our
understanding of your business and functional goals. Through workshops and interviews, Cartegraph will
identify best fit scenarios for OMS and provide a brief including any challenges as well as
recommendations for OMS best practices relevant to your implementation.
Training
• Cartegraph will provide remote train -the -trainer training, up to four (4) hours, on overall system navigation
and functionality to help familiarize your staff with the software environment and its common functions.
Training topics include:
o Home Screen
o Logins/Permission
o Layers
o Filters
o Maps
o Grids
o System Navigation
o Views (List & Detail)
o Standard Reports
o Attachments
o Requests, Work, Assets, Resources, Reports, and Administrator Tabs
• Cartegraph will provide remote train -the -trainer training, up to two (2) hours, on OMS Esri integration
functionality. Training topics include:
o OMS Esri integration configuration options
o Integration functionality (basemap and feature)
o Overall Esri integration requirements, considerations, and Cartegraph recommended best
practices
• Cartegraph will provide a three-day (3 -day) onsite "train -the -trainer" training event. The training agenda
will be defined and agreed upon by both Cartegraph and your project manager. Topics may include any
of the following:
o Request Management:
• Requests
• Requesters
• Task Creation from Requests
• Issue library (including settings such as Applies to Asset and Non -Location)
• Cartegraph recommended best practices for Request and Requester Management
o Work Management:
• Create Task(s) (Asset/Non-Asset)
• Assignments (Add, Edit, Remove)
• Task Menu Actions
• Related Work Items
• Create Work Order
• Associate Task to WO
• Repeat Work Orders
• Work Order Menu Actions
• Enter Resources
• Timesheets
• Activity library (including settings such as Applies to Asset, Inspection, Key Dates, Cost,
and Productivity)
Cartegraph recommended best practices for Work Management
o Asset Management:
• Asset Details
• Inspections
• Linked assets (if applicable)
• Container/Component Relationships (if applicable)
• Cartegraph recommended best practices for Asset Management
To avoid redundancy, and to utilize service time efficiently, training may cover a subset of the assets listed in
the Asset section of the scope.
o Resource Management:
• Resource Details
• Labor/Equipment Rates
• Material Management (Stock, Usage, Adjustments)
• Vendor Price Quotes
• Cartegraph recommended best practices for Resource Management
o Cartegraph for iPad and Cartegraph One:
• Overall system functionality (Navigation, Interface, Maps, Attachments, Sorting)
• Work Management
• Create and Update Tasks (Asset/Non-Asset)
• Assign Tasks
• Enter Resources
• Inspections
• Asset Management
• Create and Update Assets
Request Management
• View and Update Requests
• View Requester information
• Create Task from Request
Cartegraph recommended best practices for mobile device use
o Administrator:
• Administrator:
• User Administration, Role Administration, Import/Export, Error Log
Settings:
• System Settings, Base Map Administration, Geocode Settings, GIS Integration
Settings, Background Task Scheduler, Asset Color Manager
• Manager:
• Layout Manager, Library Manager, Preventative Maintenance, Asset Condition
Manager, Notification Manager, Structure Manager
• Cartegraph will provide remote train -the -trainer training, up to six (6) hours, on OMS Reporting
functionality. Training topics include:
o Security/Roles
o Report Designer
• Report Types, Report Styling, Filtering\Parameters, Basic Formulas, Grouping/Sorting
o Report Viewer
o Reporting best practices and solution tips/tricks.
Extensions
• Cartegraph will provide remote train -the -trainer training, up to eight (8) hours, on Advanced Asset
functionality. Training topics include:
o Preventative Maintenance
o Performance Management
• Prediction Groups
• Minimum Condition Groups
• Activities and Impacts
• Criticality Factor
• Install/Replaced Dates
o Cartegraph recommended best practices for advanced asset management
To avoid redundancy, and to utilize service time efficiently, training may cover a subset of the assets listed in the
Asset section of the scope.
Go -Live Support
• Cartegraph will provide up to two (2) remote web conferences (not to exceed 4 hours total) to be utilized
for Go -Live Support. The agenda will be defined, and agreed upon, by both your and Cartegraph's project
managers. Topics may include any of the following:
o Refresher training for items listed in the scope of work
o Software and process support for staff during production roll out
o Field, Layout, and Report configuration guidance, if applicable
Data Services
• Cartegraph will provide one test and one production data load service through standard import/export
functionality. Cartegraph will provide template documents for data population. Once populated by your
staff, Cartegraph will load the data into your test or production OMS environment. Data loads may include
data such as:
o Parent level asset records
o Asset location (spatial x/y) attributes
o Parent level resource (Labor, Equipment Material, Vendor) records
o Resource Rate (Labor, Equipment, Material) records
o Standard system libraries
Cartegraph will provide one test and one production custom data conversion service for your historical
data listed below:
o Access and Excel data related to: Gravel Roads; Snow Fence; Striping; Weed assets and work
history
o For the custom data conversion service(s) listed above, Cartegraph will provide:
• A review of the historical data along with recommendations for OMS best fit.
a A field map workshop, which will identify where and how historical data will appear within
OMS
• A test conversion service to facilitate data conversion validation and testing
• One revision of the field map used for the test conversion service
• A production conversion service utilizing the final, approved field map
All data must be accessible to Cartegraph from a SQL DB, SQL View, Access DB or Comma Delimited File.
• Cartegraph will provide one test and one production Standard Data Conversion service to assist with your
migration from the latest version of Cartegraph Navigator to Cartegraph OMS. The Standard Data
Conversion service includes the following:
o Assets
• Parent records and associated parent -level attributes
• Child records and associated child -level attributes
• Inspection records, including:
• Date
• OCI
• Condition Category and Index records
• Note: Cartegraph OMS does not support Bridge NBI or Storm/Sewer NASSCO inspection
methodology. This data is not included in the Standard Data Conversion service.
• Work events in Navigator's Asset Event table
o Resources (Labor, Equipment, Material)
a Parent record and associated parent -level attributes
• Current Default Rate record
• Note: Customer is responsible for creating additional rate records to account for overtime,
overhead, and/or FEMA rates, if applicable
• Equipment
• Fleet Events, if applicable
• Material
• Current Quantity -on -Hand
• Vendor Price Quotes
• Vendor
• Parent record and associated parent -level attributes
• Contacts
o Libraries
• Standard and custom library data — not specifically excluded below
o Attachment Paths
• The file paths for Attachments will be updated to refer to the OMS project home. Your internal
staff will be responsible for physically relocating files to the project home folder structure required
for OMS. Cartegraph will transfer attachment files to the project home folder structure for hosted
customers. However, files must be provided in the previously mentioned OMS project home
folder structure.
o Standard Conversion Exclusions
• Work Orders
• Labor, Equipment, Material Logs
• Worksheets
• Requests
• Citizen data
• Assets:
• Bridge: NBI inspection data
• Storm/Sewer: NASSCO inspection data
• Pavement: Detailed Distress inspection data
• PAVEMENTview Plus: Budgets, Scenarios, Models, and associated settings
• Libraries:
• Overall Ratings
• Condition Category Ratings
• Attachment Files
• Custom attachment fields or tables
Assets
Asset implementation includes the following professional services:
• Cartegraph will provide installation and training on the following twelve (12) asset types:
e Transportation (6)
• Bridge; Marking; Pavement; Sign; Right of Way; Gravel Roads
o Storm (3)
• Storm Culvert; Storm Outlet; Storm Channel
o Other (3)
• Fence; Cattle Guard; Gravel Pit
• Cartegraph will provide up to five (5) field configurations for each asset type listed above.
Cartegraph will provide all services remotely via audio, video, and web conferences unless otherwise noted.
Customer Responsibility
For the project, you will be responsible for appointing a dedicated project manager that will be responsible for:
• Reviewing the implementation scope of work
• All internal aspects of the project including, but not limited to, internal change management, internal
documentation, staff coordination, task completion, and schedule commitment
• Ensuring all scheduled meetings are attended by invited staff
• Partnering with the Cartegraph Project Manager to ensure project success
Providing leadership and insight on all relevant internal issues such as policy/procedure, organizational
structure, project stakeholders, technical architecture, data, and current systems
Exclusions
The following service items are not included in the scope of this project:
• Implementation of any custom modification or integration developed by Cartegraph, your internal staff, or
any third -party is not included in the scope of this project unless specifically listed above.
• Data conversion services from other software system(s) or sources (including Cartegraph Navigator
databases) are not included in the scope of this project unless specifically listed above.
• Any service items discussed during demonstrations, conference calls, or other events are not included in
the scope of this project unless specifically listed above.
Customer/Cartegraph Responsibilities
Project representatives from Customer and Cartegraph accepts responsibility for all aspects of project planning,
management, and execution not specifically identified as the responsibility of Cartegraph in the Agreement or in the
Purchase Agreement. Ongoing management of the day-to-day allocation of Customer and Cartegraph resources and
management of project tasks is the responsibility of the Customer and Cartegraph project representatives. Customer and
Cartegraph project representatives will provide overall guidance and direction for the project and will direct the project
accordingly. Further, and with regard to the Cartegraph obligations listed in this Purchase Agreement, Customer
understands that it is vital to the success of the project that Customer provides assistance in the following matters:
1. For those services listed under Field Services, Cartegraph personnel will conduct information gathering and
evaluation sessions with various Customer Users and management. While Cartegraph respects the time and
workload of Customer staff, dedicated time on the part of the appropriate Customer resources is necessary to
complete these exercises.
2. The installation process requires the assistance of Customer personnel and suitable access to hardware and
systems (e.g., security clearance). Customer is required to supervise the installation process while systems are
accessible to Cartegraph. All hardware and software, for both personal computers and servers, is expected to be
available, installed, and operating as specified in Cartegraph's system requirements documentation such that
delivery and execution of Cartegraph Field Services will not be impeded.
3. Customer and Cartegraph understand that the successful performance of Field Services depends upon Customer
fulfilling its responsibilities. The Project assumes that Customer will provide all personnel required to achieve a
successful implementation.
4. Customer will provide Internet access and IT staff support as required. For those services that are web -based,
Cartegraph utilizes WebEx Meeting (or similar) technology.
5. Customer shall ensure that their workstation platform and database meet Cartegraph system requirements as
specified in the Cartegraph System Requirements documentation. Solutions will be supported within new
versions of these workstation platforms and databases within a reasonable period of time from their release from
their manufacturer. Cartegraph will discontinue support of its Solutions within older versions of these workstation
platforms and databases as their support is discontinued by their manufacturers.
6. Customer agrees to work with Cartegraph to schedule Field Services in a timely manner. All undelivered Field
Services shall expire 365 days from the execution of this Purchase Agreement, unless noted differently in
Services Scope listed above. Upon expiration of services, the project may be cancelled at Cartegraph's
discretion.
Limitation of Liability
Customer acknowledges and agrees that Customer's use or nonuse and any reliance upon the data provided as part of
the Field Services is at Customer's own risk, and that no representations or warranties are provided by Cartegraph with
respect to the Field Services except as expressly set forth herein and in the Agreement. Each party agrees to be
responsible for its own liability incurred as a result of its participation in this Agreement.
Not -to -Exceed Purchase Agreement
Cartegraph will not exceed the total included in this Purchase Agreement without written approval from Customer. In the
event it becomes apparent to Cartegraph that additional Service will be needed due to any changes in the scope of this
Purchase Agreement, Cartegraph will notify Customer prior to exceeding the approved efforts and obtain written approval
if additional Services are required.
ADDENDUM TO CARTEGRAPH SOLUTIONS AGREEMENT,
DATED MARCH 28, 2018
THIS ADDENDUM is dated April 23, 2018, and contains terms intended to supersede and clarify the
terms set forth in that certain Cartegraph Solutions Agreement, to which this Addendum is attached and
incorporated by this reference.
Section 6.1 is hereby amended to read as follows:
Either party may terminate this Agreement immediately upon notice to the other party if the other party:
(a) materially breaches this Agreement and fails to remedy such breach within 30 days after receiving
notice of the breach from the other party; (b) materially breaches this Agreement in a manner that cannot
be remedied; or (c) commences bankruptcy or dissolution proceedings, has a receiver appointed for a
substantial part of its assets, or ceases to operate in the ordinary course of business.
Fund Availability. Financial obligations of the County payable after the current fiscal year are contingent
upon funds for that purpose being appropriated, budgeted and otherwise made available. Execution of
this Agreement by County does not create an obligation on the part of County to expend funds not
otherwise appropriated in each succeeding year"
Section 11.1 is hereby amended to read as follows:
To the extent permitted by law, each party (the "Indemnifying Party") will defend the other party and its
officers, directors, employees, and agents (its "Related Parties") from and against any claim, allegation or
action (any "Action") brought against the other party or one of its Related Parties by a third party (other
than by the other party itself or another of its Related Parties) to the extent relating to, resulting from, or
arising out of the gross negligence or willful misconduct of the Indemnifying Party in the performance (or
failure to perform) any of its obligations under this Agreement. The Indemnifying Party will further pay
those losses, liabilities, damages, fees, expenses, and costs (including reasonable attorneys' fees and
court costs) ("Losses") finally awarded against the other party or one of its Related Parties in any such
Action or those Losses agreed to in a monetary settlement of such Action, as applicable.
Section 11.3 Is hereby amended to read as follows:
To the extent permitted by law, Customer will defend Cartegraph and its Related Parties from and against
any Action brought against Cartegraph or one of its Related Parties by a third party (other than by
Cartegraph or another Cartegraph Related Party) to the extent relating to, resulting from, or arising out of
any: (a) any violation of any Law caused by the use of or access to the Solutions by Customer; or (b) any
claim or allegation by a User or other third party relating to use of or access to the Solutions or any
Services by Customer. Customer will only pay those Losses finally awarded against Cartegraph in any
such Action or those Losses agreed to in a monetary settlement of such Action, as applicable.
Section 14.2 is hereby amended to read as follows:
The Receiving Party's obligations with respect to any Confidential Information of the Disclosing Party will
terminate if such information: (a) was already lawfully known to the Receiving Party as of the Effective
Date; (b) is disclosed to the Receiving Party after the Effective Date by a third party who had the right to
make such disclosure without any confidentiality restrictions; or (c) is, or through no fault of the Receiving
Party becomes, generally available to the public. The Receiving Party may disclose the Confidential
Information of the Disclosing Party if compelled or required to do so by a court of competent jurisdiction or
other governmental entity having jurisdiction over the Receiving Party, provided that the Receiving Party
provides the Disclosing Party with notice of such requirement and provides reasonable assistance to the
Disclosing Party in any attempts to contest such disclosure or obtain a protective order or other applicable
limitation with respect to such disclosure. In any event, the Receiving Party will be entitled to receive
1
payment of its expenses and costs actually incurred in responding to such disclosure request and will
disclose only such portion of any Confidential Information as it is legally compelled or required to disclose.
Contractor is advised that as a public entity, Weld County must comply with the provisions of C.R.S. 24-
72-201, et seq., with regard to public records, and cannot guarantee the confidentiality of all documents.
Section 16 is hereby removed from Cartegraph Solutions Agreement
Section 19 is hereby amended to read as follows:
Unless otherwise amended as provided herein, this Agreement will exclusively govern Customer's access
to and use of the Solutions and all Services and is the complete and exclusive understanding and
agreement between the parties, and supersedes any oral or written proposal, agreement or other
communication between the parties. Except as expressly set forth in this Agreement, this Agreement may
be modified or amended only in writing signed by both parties. If any provision of this Agreement is held
to be unenforceable, that provision will be removed to the extent necessary to comply with the law,
replaced by a provision that most closely approximates the original intent and economic effect of the
original to the extent consistent with the law, and the remaining provisions will remain in full force. Neither
this Agreement nor any rights or obligations of Customer hereunder may be assigned without the prior
written approval of Cartegraph. Any assignment in violation of the foregoing will be null and void.
Cartegraph may assign this Agreement to any party that assumes Cartegraph's obligations hereunder,
including by sale, merger, consolidation, or operation of law or otherwise. Cartegraph may subcontract its
obligations under this Agreement, provided that Cartegraph remains responsible for compliance with the
applicable terms of this Agreement as to those obligations. The words "include," "includes" and "including"
means "include," "includes" or "including," in each case, "without limitation." All waivers under this
Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
The preprinted terms of a purchase order or any other similar document will not apply to or modify this
Agreement. The parties hereto are independent parties, not agents, employees or employers of the other
or joint venturers', and neither acquires hereunder any right or ability to bind or enter into any obligation
on behalf of the other. Customer gives Cartegraph permission to use Customer's name or logo for public
press releases and customer stories. Cartegraph provides the Solutions, including related software and
technology, for federal government end use as a "Commercial Item" as that term is defined at 48 C.F.R.
§2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software
Documentation", as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with
48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Solutions are
provided to the Customer with only those restricted rights as provided under the terms and conditions of
this Agreement. If a government agency has a need for rights not conveyed under these terms, it must
negotiate with Cartegraph to determine if there are acceptable terms for transferring such rights, and a
mutually acceptable written addendum specifically conveying such rights must be included in any
applicable contract or agreement.
2
BY EXECUTING THIS ADDENDUM CUSTOMER ACKNOWLEDGES THAT IT HAS REVIEWED THE TERMS AND
CONDITIONS ON THE FOLLOWING PAGES IN ADDITION TO ANY EXHIBITS AND PURCHASE AGREEMENTS
AND CUSTOMER AGREES TO BE LEGALLY BOUND BY EACH SUCH AGREEMENT.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first stated above.
CARTEGRAPH SYSTEMS LLC
(vitt
By: Mitch Bradley
SuP
SVP of les & Marketing
f
ATTEST: Ceod twerAi tiszil;de,
Weld County Clerk to the Board
BY:
Deputy C
I
3
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ve Moreno, Chair
MAY 0 9 20P8
Waif- /527
Cartegraph Solutions Agreement
Last Modified: 03/28/2018
This Cartegraph Solutions Agreement ("Agreement") is a contract between Cartegraph Systems LLC, a
Delaware corporation, having its principal place of business at 3600 Digital Drive, Dubuque, Iowa 52003
("Cartegraph") and you, or if you represent an entity or other organization, that entity or organization, (in
either case, the "Customer"). Cartegraph and Customer may be referred to in this Agreement collectively
as the "parties" or individually as a "party."
Cartegraph provides certain hosted operations management and asset management solutions (the
"Cartegraph Solutions" or "Solutions"). Customer desires to purchase a subscription to access and use
certain of the Cartegraph Solutions for Customer's own internal use and operations.
This Agreement sets forth the terms and conditions under which Cartegraph will agree to provide
Customer with a subscription to access and use those Solutions specified in written Purchase
Agreements referencing this Agreement entered into by Cartegraph and Customer (each, a "Purchase
Agreement") and perform those services specified in each Purchase Agreement (the services provided by
Cartegraph under this Agreement, including the services made available through the Solutions, the
"Services"). All access to and use of the Solutions and the performance of all Services are subject to the
terms of this Agreement.
This Agreement includes any Purchase Agreement entered into by the parties referencing this Agreement
and any written Addendum attached to a Purchase Agreement, including descriptions of any Solutions or
Services (each, an "Addendum"), all of which are hereby incorporated into and made a part of this
Agreement. Unless you later enter into any other Agreement with Cartegraph regarding the Solutions and
Services, this Agreement is the complete and exclusive statement of the agreement between the parties
and supersedes any proposal or prior agreement, oral or written, and any other communications between
the parties, in relation to the subject matter of this Agreement. Terms used in this Agreement will have the
definitions given in this Agreement or, if not defined in this Agreement, will have their plain English (US)
meaning.
PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, THROUGH
THE EXECUTION OF A PURCHASE AGREEMENT THAT REFERENCES THIS AGREEMENT, OR BY
CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS AGREEMENT, YOU
AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO
NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS
AGREEMENT OR ANY PURCHASE AGREEMENT, CARTEGRAPH IS NOT WILLING TO PROVIDE
YOU, AS CUSTOMER, WITH ACCESS TO OR USE OF CARTEGRAPH SOLUTIONS OR SERVICES,
AND YOU MUST NOT ACCESS OR USE CARTEGRAPH SOLUTIONS OR SERVICES. IF YOU
ACCESS OR USE CARTEGRAPH SOLUTIONS OR SERVICES, YOU ACKNOWLEDGE THAT YOU
MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND ANY PURCHASE
AGREEMENT, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN.
1. Term.
The term of this Agreement shall begin upon the execution of an initial Purchase Agreement under this
Agreement and, unless earlier terminated as permitted herein, shall continue for the period of time
specified in that Purchase Agreement ("Initial Term"). The execution of any subsequently added Purchase
Agreement under this Agreement shall not extend the Initial Term unless otherwise expressly stated in
that Purchase Agreement. Unless otherwise stated in an applicable Purchase Agreement under this
Agreement, the Initial Term of this Agreement shall automatically renew for successive additional 1 year
renewal periods (each, a "Renewal Term") unless either party provides the other party with written notice
of its intent not to renew this Agreement at least 90 days before the end of the Initial Term or any such
Renewal Term.
2. Solutions.
2.1 Functionality.
The Solutions will include the functionality described in the applicable Purchase Agreement or Addendum
for each Solution. Cartegraph may from time to time update, change, or revise the functionality of the
Solutions, provided the functionality of the Solutions is not materially decreased from that described in the
applicable Purchase Agreement or Addendum to a Purchase Agreement.
2.2 Subscription.
Subject to the terms and conditions of this Agreement, during the term of this Agreement Cartegraph will
provide Customer with a non-exclusive, non -transferable, and non-sublicensable subscription to allow
employees and independent contractors of Customer ("Users") to access and use the Solutions, solely for
purposes of Customer's own internal use and operations. If Customer has purchased a per -user
subscription, as indicated in the applicable Purchase Agreement, only the finite number of subscriptions
indicated in each applicable Purchase Agreement have been purchased by Customer and only that finite
number of Users may access and use the Solutions at any given time. If Customer has purchased an
unlimited subscription, as indicated in the applicable Purchase Agreement, all Users associated with
Customer are permitted to access and use the Solutions at any given time. In either case, the
subscription applies only to the Users and does not allow access to or use of the Solutions by any
affiliated entities or organizations, or any other entity unless approved in advance by Cartegraph in
writing.
2.3 Access.
Customer may access the Solutions solely through the account established for Customer (an "Account").
Customer will be permitted to establish user identifications and passwords through which individual Users
may access the Solutions through Customer's Account ("User IDs"). Each User ID is issued to a specific
User and may be used only by that User. Customer will ensure that all information about each User
provided to Cartegraph in connection with establishing each User ID is accurate and complete and will
maintain that information as accurate and complete throughout the term of this Agreement. Customer is
and will remain solely responsible for all use of the Solutions by any User and for compliance by each
User with the applicable terms of this Agreement. If Customer authorizes an independent contractor or
consultant as a User, in addition to being responsible for such independent contractor's or consultant's
actions as a User, Customer shall also require such independent contractor or consultant to agree to
terms at least as protective of the Solutions as those contained in this Agreement prior to being granted
access to the Solutions. Customer will ensure the security and confidentiality of each User ID and will use
commercially reasonable efforts to prevent unauthorized access to or use of the Solutions. Customer will
notify Cartegraph promptly of any such unauthorized access or use of the Solutions or if any User ID is
lost, stolen, or otherwise compromised. Customer acknowledges that Customer is and will remain fully
responsible for all costs, fees, liabilities, or damages incurred through any access to or use of the
Solutions through Customer's Account or by any User (whether lawful or unlawful) and that any Services
used or transactions facilitated through Customer's Account or under any User ID will be deemed to have
been completed by Customer. In no event will Cartegraph be liable for the foregoing obligations or any
failure by Customer to fulfill such obligations.
2.4 Restrictions.
The Solutions, the software, hardware, databases, and other technology used by or on behalf of
Cartegraph to provide the Solutions (the "Cartegraph Technology"), and their structure, organization, and
underlying data, information, and source code, constitute valuable trade secrets of Cartegraph and its
licensors. As a condition to the use of and access to the Solutions, Customer will not, and will not permit
any User or other third party to: (a) access or use the Solutions except as expressly permitted by this
Agreement; (b) access or use the Cartegraph Technology directly, except through the Solutions as
expressly provided in this Agreement; (c) use the Solutions in any unlawful or illegal manner or in any
other manner that could damage, disable, overburden or impair the Cartegraph Technology; (d) use
automated scripts to collect information from or otherwise interact with the Cartegraph Technology; (e)
alter, modify, reproduce, create derivative works of the Cartegraph Technology; (f) distribute, sell, resell,
lend, loan, lease, license, sublicense, transfer, or otherwise make available the Solutions or any of
Customer's rights to access or use the Solutions or any Service to any third party; (g) reverse engineer,
disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any
trade secrets embodied in the Cartegraph Technology; (h) attempt to circumvent or overcome any
technological protection measures intended to restrict access to any portion of the Cartegraph
Technology; (i) use the Cartegraph Technology for purposes of monitoring their availability, performance
or functionality, or for any other benchmarking, business intelligence, data mining, or competitive
purposes; or (j) interfere in any manner with the operation or hosting of the Cartegraph Technology.
2.5 Third Party Offerings.
Customer agrees and acknowledges that certain portions of the Solutions may be provided by third party
providers ("Third Party Offerings"). Customer's access to and use of any Third -Party Offering is also
subject to any other agreement separate from this Agreement that Customer may enter into (or may have
entered into) relating to those Third -Party Offerings ("Third Party Terms"). In addition to the terms of this
Agreement, access to and use of each Third -Party Offerings is also subject to the terms and conditions of
any Third -Party Terms applicable to that Third -Party Offering. Except as set forth in this Agreement, any
applicable Third -Party Terms will control in the event of a conflict between the terms of this Agreement
and those Third -Party Terms. Except as expressly set forth in any Third -Party Terms, you are granted no
licenses or rights, whether by implication, estoppel, or otherwise, in or to any Third Party Offerings.
3. Services.
If Customer enters into a Purchase Agreement, including any applicable Addendum specifying any of the
following Services, Cartegraph will use commercially reasonable efforts to provide those Services to
Customer during the term of this Agreement. All such Services are provided subject to the terms and
conditions of this Agreement. Cartegraph has no obligation to provide any of the following Services
unless specified in a Purchase Agreement or Addendum to this Agreement.
3.1 On -Site Installation Services.
Cartegraph will provide Customer with deployment and installation Services for the Solutions if indicated
in a Purchase Agreement ("On -Site Installation Services"). On -Site Installation Services will be subject to
scheduling in cooperation with Customer. Customer will provide all equipment and hardware stated in
such Purchase Agreement, and any additional equipment and hardware reasonably necessary for the
operation of the Solutions. Customer shall be responsible for maintaining the equipment and hardware,
which shall include providing sufficient resources (e.g., electricity, HVAC, or other resources) necessary
for the equipment and hardware to properly operate. Cartegraph's warranties and indemnification
obligations contained in this Agreement shall be limited to the extent that such obligation arises from
Customer's equipment and hardware. Customer shall coordinate with Cartegraph to provide Cartegraph
with the level of access to the equipment and hardware to perform OnSite Installation Services and any
other Services as specified in a Purchase Agreement. If no level of access is specified in a Purchase
Agreement, then all access by Cartegraph to the equipment and hardware shall be remote access.
Unless otherwise specified in a Purchase Agreement, Cartegraph shall have no obligation to perform the
On -Site Installation Services, or any other Services, on Customer's premises. If Cartegraph determines
that it is necessary to perform any Services on Customer's premises, Cartegraph shall first receive
approval from Customer prior to performing such Services on Customer's premises. Cartegraph shall
have no responsibility to Customer for any liability to the extent that such liability arises from Customer's
failure to provide Cartegraph sufficient or timely access to the equipment or hardware. Customer
understands that Customer does not receive any rights to the Cartegraph Technology separate and apart
from Customer's right to access the Solutions installed on -site by Cartegraph as described in this
Agreement. If Customer requires additional rights to access the Solutions, Customer shall obtain
Cartegraph's prior written consent. Upon termination or expiration of this Agreement, Customer will
immediately either return to Cartegraph or, at Cartegraph's discretion, destroy any Cartegraph
Technology then in Customer's possession or control and certify in writing signed by an officer of
Customer that it has fully complied with the foregoing obligations.
3.2 Support Services.
Cartegraph will provide Customer with support Services for the Solutions as specified in Addendum A if
such Addendum is attached to a Purchase Agreement ("Support Services").
3.3 Field Services.
Cartegraph will provide Customer with the field implementation Services for the Solutions as specified in
Addendum B if such Addendum is attached to a Purchase Agreement ("Field Services"). Field Services
will be subject to scheduling in cooperation with Customer.
3.4 Data Services.
Cartegraph will provide Customer with the data collection Services for the Solutions as specified in
Addendum C if such Addendum is attached to a Purchase Agreement ("Data Services"). Data Services
will be subject to scheduling in cooperation with Customer.
3.5 Professional Services.
Cartegraph will perform any additional professional Services relating to the Solutions ("Professional
Services") if specified in any written statement of work mutually agreed to by both parties under this
Agreement. Cartegraph will perform all Professional Services at the rates for those Professional Services
set forth in each applicable statement of work, or, if no rates are set forth in an applicable statement of
work, at Cartegraph's then -current rates for those Professional Services. Professional Services shall be
performed during the working hours stated in the statement of work applicable to those Professional
Services, or, if no working hours are stated, the Professional Services will be provided during the hours of
7:00 a.m. to 7:00 p.m., Central Standard or Central Daylight Time, whichever is applicable, Monday
through Friday excluding holidays.
4. Software.
Cartegraph may provide Customer with software in connection with the Solutions ("Software"). Unless any
Software provided by Cartegraph in connection with the Solutions is subject to a license or other
agreement separate from this Agreement that Customer has entered into (or may enter into) with
Cartegraph (a "Software License Agreement"), Cartegraph grants Customer a limited, non-exclusive, non-
transferrable, non -assignable, license solely to install and execute the Software in accordance with the
instructions provided by Cartegraph for Customer's own internal use and operations in connection with
Customer's access to and use of the Solutions. Except as expressly set forth in the foregoing sentence
(or any applicable Software License Agreement), Customer is granted no licenses or rights, whether by
implication, estoppel, or otherwise, in or to any Software, and Customer may not modify, reproduce,
perform, display, create derivative works from, republish, post, transmit, transfer, sell, distribute, or in any
way exploit any Software without the prior written permission of Cartegraph. Except as set forth in this
Agreement, the terms of any Software License Agreement will control in the event of a conflict between
the terms of this Agreement and that Software License Agreement. Customer agrees that use of the
Software is limited as described in the Purchase Agreement, as either: (1) Browser Based User — Each
browser based User is defined by User ID; or For Server Software — One copy of Software for each
server. Customer agrees that Cartegraph may audit Customer's Software usage remotely or on -site upon
reasonable notice and during standard business hours. Prevention of audit by Customer may be grounds
for termination of this Agreement. Cartegraph and its licensors will not be responsible to Customer for
loss of use of any Software or for any other liabilities arising from alterations, additions, adjustments, or
repairs which are made to any Software by Customer or other third parties. Cartegraph reserves the right
to terminate the licenses granted to any Software or any Services provided in connection with that
Software upon written notice to Customer if any such alteration, addition, adjustment, or repair adversely
affects Cartegraph's ability to render Services.
5. Fees and Payment.
5.1 Fees.
Customer agrees to pay Cartegraph all fees specified in any Purchase Agreement and as otherwise
specified in this Agreement ("Fees").
5.2 Payment.
All Fees will be invoiced in advance in accordance with the terms applicable to such Fees. If no terms for
an applicable Fee are set forth in the applicable Purchase Agreement, such Fees will be invoiced on a
monthly basis following the end of the month in which they were incurred. All Fees as set forth on each
invoice issued by Cartegraph under this Agreement will be due and payable by Customer in immediately
available U.S. funds within 30 days of the date of invoice. If Customer has not made payment within 30
days of the date of invoice, Customer shall be in default. Customer's default will constitute sufficient
cause for Cartegraph to suspend Customer's access to the Solutions or any Services upon notice to
Customer. All Fees will be non-refundable once paid to Cartegraph (including upon any termination or
suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the
lesser of 1%% per month or the maximum amount permitted under applicable law. If Cartegraph requires
use of collection agencies, attorneys, or courts of law for collection on Customer's account, Customer will
be responsible for those expenses. Customer will be responsible for all use, sales, and other taxes
imposed on the Services provided under this Agreement:
5.3 Taxes.
The Fees do not include any local, state, provincial, federal or foreign taxes, levies, assessments, duties,
or other governmental charges of any kind or nature, including, without limitation, any value-added tax
(VAT), stamp or other similar tax, social security (or local equivalent), state or regional tax, or income or
other federal tax ("Taxes"). Customer is responsible for paying all Taxes that may be imposed by way of
the performance of either party under this Agreement, excluding only Taxes based on Cartegraph's net
income. If Cartegraph is found or deemed to have a legal obligation to pay or collect any Taxes for which
Customer is responsible under this Agreement, the appropriate amount shall be invoiced to and paid by
Customer unless Customer provides Cartegraph with a valid tax exemption certificate authorized by the
appropriate taxing authority.
5.4 Fee Increases.
Cartegraph may increase the Fees applicable to Customer to the then -current prices for the next Renewal
Term by providing notice of such increase at least 60 days before the beginning of such Renewal Term. If
after receiving such notice Customer wishes not to renew the Agreement for the next Renewal Term,
Customer must provide written notice to Cartegraph of Customer's intent not to renew this Agreement at
least 60 days before the end of the Initial Term or any such Renewal Term.
5.5 Expenses.
Customer shall reimburse Cartegraph for reasonable expenses incurred during the provision of Services.
Reasonable expenses include, but are not limited to, travel, lodging, and meals. Expenses are billed
based on actual costs incurred. Estimated expenses shall be included in each Purchase Agreement.
Cartegraph shall not exceed the estimated expenses without written approval from Customer.
6. Termination.
6.1 Termination for Cause.
Either party may terminate this Agreement immediately upon notice to the other party if the other party:
(a) materially breaches this Agreement and fails to remedy such breach within 30 days after receiving
notice of the breach from the other party; (b) materially breaches this Agreement in a manner that cannot
be remedied; or (c) commences bankruptcy or dissolution proceedings, has a receiver appointed for a
substantial part of its assets, or ceases to operate in the ordinary course of business.
6.2 Service Discontinuance.
If Cartegraph at any time discontinues offering any Solutions or any Services to new customers,
Cartegraph will give Customer reasonable advance notice of such discontinuation. Upon such date of
discontinuation, Cartegraph will have the right to terminate this Agreement as to those Solutions or
Services upon notice to Customer. As of the date of termination, Cartegraph will credit to Customer, on a
pro -rated basis, any pre -paid Fees under this Agreement and Cartegraph shall have no further obligation
to provide the Solutions or any Service under this Agreement.
6.3 Suspension.
Without limiting Cartegraph's right to terminate this Agreement, Cartegraph may suspend Customer's
access to the Solutions or any Services upon notice to Customer following any breach of this Agreement
if deemed reasonably necessary by Cartegraph to prevent any damage, injury, or harm to Cartegraph,
the Cartegraph Technology, any other Cartegraph customer, or any third party.
6.4 Effect of Termination.
All Purchase Agreements shall terminate immediately upon termination of this Agreement. Upon
termination or expiration of this Agreement for any reason, and following any applicable Transition Period:
(a) Cartegraph may cease providing access to all Solutions and Services under this Agreement; (b) all
subscriptions and other rights and licenses granted to Customer under this Agreement will terminate; (c)
Customer will immediately cease all use of and access to all Solutions and Services; (d) all Fees and
other amounts then owed by Customer under this Agreement will become immediately due and payable
to Cartegraph; (e) Customer will immediately either return to Cartegraph or, at Cartegraph's discretion,
destroy any Cartegraph Data and Cartegraph Confidential Information (each as defined below) then in
Customer's possession or control; and (f) Cartegraph will either return to Customer or, at Customer's
discretion, destroy any Customer Data and Customer Confidential Information) then in Cartegraph's
possession or control. The following Sections will survive termination or expiration of this Agreement for
any reason: 5 (Fees and Payment), 6.4(Effect of Termination), 7 (Ownership), 10 (Disclaimer), 11
(Indemnification), 12 (Limitation on Liability), 14 (Confidentiality), 15 (Governing Law), 16 (Non -
Solicitation), 17 (Force Majeure), 18 (Notice), and 19 (Additional Terms).
6.5 Transition Services.
Except in the case of a termination under Section 6.1 by Cartegraph, at any time prior to the effective
date of any termination or expiration of this Agreement, Customer may request that Cartegraph continue
to provide Customer with any Services then provided under this Agreement for purposes of transitioning
and migrating Customer off of the Solutions ("Transition Services"). Upon such request, the parties will
develop a mutually agreed to transition plan describing the Transition Services and each party's
respective obligations in connection with the transition and migration of Customer off of the Solutions
("Transition Plan"). Cartegraph will provide the Transition Services for the period agreed to in the
Transition Plan, such period not to exceed 180 days following termination or expiration of this Agreement
(the "Transition Period"). Customer will compensate Cartegraph for all Transition Services at rates
specified in the Transition Plan or, if no rates are agreed upon by the parties prior to the performance of
the Transition Services, at Cartegraph's then current rates for the Services. All Transition Services will
otherwise be subject to the terms of this Agreement.
7. Ownership.
Cartegraph retains all right, title, and interest in and to the Solutions, Cartegraph Technology, Cartegraph
Data, any additions, improvements, updates, new versions, or other modifications thereto created by
either party, whether or not through the Services, alone, jointly, or with any third party, and all IPR (as
defined below) therein and related thereto. Customer does not receive any ownership interest in or to any
of the foregoing, and no right or license is granted to Customer to use any of the foregoing apart from
Customer's right to access and use the Solutions under this Agreement. Customer will perform all acts
reasonably necessary to assist Cartegraph in perfecting and defending Cartegraph's ownership interest in
any of the foregoing. Without limiting the foregoing, Customer agrees to and does hereby make all
assignments necessary to provide Cartegraph with the ownership rights set forth in this Section. All
names and logos associated with the Solutions and other Services are trademarks of Cartegraph (or its
third party providers) and no right or license is granted to Customer to use them. Any rights not expressly
granted to Customer hereunder are reserved by Cartegraph. Customer will not remove or alter any
proprietary rights legend on the Solutions, Cartegraph Technology, or Cartegraph Data. For purposes of
this Agreement, "IPR" means any and all intellectual property and other proprietary rights throughout the
world, including, all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, rights
in data and databases, and contract rights.
8. Data.
8.1 Customer Data.
As between Customer and Cartegraph, Customer retains ownership of all data, information, and other
content provided to Cartegraph or through the Solutions by or on behalf of Customer ("Customer Data").
Customer is responsible for all Customer Data, including the accuracy, quality, integrity, legality, reliability,
and appropriateness thereof. Customer will obtain and maintain all authorizations, approvals,
permissions, and other rights necessary for Cartegraph to use and process all Customer Data in the
performance of the Services and any other obligations of Cartegraph under this Agreement. Customer will
maintain an adequate back-up of all Customer Data and, except for any express obligations of
Cartegraph to maintain back-up copies of Customer Data, Cartegraph will not be responsible or liable for
any deletion, correction, destruction, damage, loss, or failure to store or back-up any of Customer Data.
8.2 Cartegraph Data.
As between Cartegraph and Customer, Cartegraph retains ownership of all data, information, and other
content provided to Customer through the Solutions and the other Services, excluding any Customer
Data ("Customer Data"). Subject to the terms of this Agreement, Customer may access the Cartegraph
Data without modification solely for Customer's own internal business purposes in connection with
Customer's use of and access to the Solutions. Cartegraph uses commercially reasonable measures to
ensure the accuracy and reliability of all Cartegraph Data, but except as expressly provided herein
Cartegraph will not be responsible for any erroneous data, information, or content provided through the
Solutions. Except as expressly provided in this Agreement, Customer is granted no rights in or to the
Cartegraph Data.
8.3 Data Security.
Cartegraph shall establish and maintain during the term an information security policy providing for
reasonable administrative, technical, physical safeguards and security measures designed to protect
against the unintended or unauthorized destruction, loss, alteration, or access of any Customer Data in
the possession or control of Cartegraph, which safeguards and measures are compliant with applicable
federal, state, provincial, or local laws, rules, and regulations ("Laws"). Customer will establish and
maintain during the term reasonable and appropriate administrative, technical, and physical safeguards
and security measures designed to protect against the unintended or unauthorized destruction, loss,
alteration, or access of any Cartegraph Data in the possession or control of Customer, which safeguards
and measures are consistent with applicable Laws. Each party will promptly notify the other party of any
data security breach or similar incident that has, or might have, compromised the privacy or security of
any Customer Data or, in the case of Customer, any Cartegraph Data in the possession or control of such
party. Each party will indemnify and hold harmless the other party from and against any damages or
losses asserted against or incurred by the other party arising out of or related to a breach of a party's data
security obligations.
8.4 Data Privacy.
Cartegraph may use and disclose data and information collected through the operation of the Solutions
solely as described in this Agreement and in Cartegraph's then -current privacy policy applicable to the
Solutions. Notwithstanding anything to the contrary in the privacy policy, Cartegraph will have the right to
collect and analyze non -personal information (data or information that does not identify an entity or
natural person as the source thereof) resulting from Customer's access to and use of the Solutions. To
the extent any such non -personal information is collected or generated by Cartegraph, the data and
information may be used by Cartegraph, or its permitted service providers, for any lawful business
purpose, provided that the data and information is used only in an aggregated form, without directly
identifying Customer, or any other User, as the source thereof.
9. Representations and Warranties.
9.1 General.
Each party represents, warrants, and covenants to the other party that: (a) it has and will continue to have
during the term hereof, all rights, power, and authority necessary to enter into this Agreement and
perform all of its obligations under this Agreement; (b) the performance of its obligations under this
Agreement does not and will not violate any Law applicable to such party's performance, any rights of any
third party, or any agreement by which such party is bound; and (c) it will procure all rights, certificates,
licenses, permits, or other approvals required for its performance under this Agreement.
9.2 Performance.
During the term of this Agreement, Cartegraph represents and warrants to Customer that Cartegraph will
use commercially reasonable efforts to maintain and verify that the Solutions operate in accordance with
the applicable documentation for the Solutions provided to Customer by Cartegraph and in accordance
with any other levels of performance specified in this Agreement or applicable Purchase Agreement.
Cartegraph's sole obligation and Customer's sole and exclusive remedy in the event of any failure of the
Solutions to comply with any such performance levels will be for Cartegraph to, at its option: (a) remedy
the failure or re -perform the affected Services; or (b) refund Customer the portion of any Fees applicable
to the portion of the Solutions subject to the failure.
9.3 Non -Infringement.
Cartegraph represents and warrants to Customer that the use by Customer of the Solutions during the
term and in accordance with this Agreement (the "Covered Services") will not infringe any third party U.S.
patent or copyright or misappropriate any third party trade secret in existence under any Laws of any
state within the U.S. As Cartegraph's sole obligation and Customer's sole and exclusive remedy for of
any failure by Cartegraph to comply with the foregoing sentence, Cartegraph will defend Customer
against any such failure as set forth in Section 11.2.
10. Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOLUTIONS AND ALL SERVICES
UNDER THIS AGREEMENT, AND ALL CARTEGRAPH DATA PROVIDED THROUGH THE SOLUTIONS
OR THOSE SERVICES, ARE PROVIDED TO CUSTOMER STRICTLY "AS IS" AND "AS AVAILABLE"
AND CARTEGRAPH AND ITS PROVIDERS EXPRESSLY DISCLAIM, AND CUSTOMER DISCLAIMS
ANY RELIANCE ON, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH
REGARD THERETO OR TO ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON -INFRINGEMENT,
AVAILABILITY OR ERROR -FREE OPERATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE
GIVEN BY CARTEGRAPH, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL
INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE
WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.
11. Indemnification.
11.1 General.
Each party (the "Indemnifying Party") will defend the other party and its officers, directors, employees, and
agents (its "Related Parties") from and against any claim, allegation or action (any "Action") brought
against the other party or one of its Related Parties by a third party (other than by the other party itself or
another of its Related Parties) to the extent relating to, resulting from, or arising out of the gross
negligence or willful misconduct of the Indemnifying Party in the performance (or failure to perform) any of
its obligations under this Agreement. The Indemnifying Party will further pay those losses, liabilities,
damages, fees, expenses, and costs (including reasonable attorneys' fees and court costs) ("Losses")
finally awarded against the other party or one of its Related Parties in any such Action or those Losses
agreed to in a monetary settlement of such Action, as applicable.
11.2 Non -Infringement.
Cartegraph will defend Customer from and against any Action brought against Customer by a third party
(other than a Customer Related Party) that the use by Customer of the Covered Services infringes any
U.S. patent, or copyright or misappropriates any trade secret in existence under any Laws of any state
within the U.S. Cartegraph will pay those Losses finally awarded against Customer in any such Action or
those Losses agreed to in a monetary settlement of such Action, as applicable. If Customer is, or
Cartegraph reasonably believes Customer may be, enjoined from using any Covered Service due to an
Action covered by this Section, Cartegraph may procure the right for Customer to continue using the
Covered Service, replace or modify the Covered Service so that it becomes non -infringing, or terminate
this Agreement and provide Customer a refund of any pre -paid amounts applicable to the Covered
Service (if any). Cartegraph will have no obligation under this Section or otherwise with respect to any
Action or Losses in the case of: (a) any use of any Covered Service other than by Customer; (b) any use
of any Covered Service not under and in accordance with this Agreement; (c) any use of any Covered
Service in combination with products, equipment, services, processes, software, data or information not
supplied by Cartegraph; or (d) any modification of or enhancement to any Covered Service other than by
Cartegraph. This Section constitutes Cartegraph's sole and exclusive liability, and Customer's sole and
exclusive remedy, for any infringement or misappropriation of IPR or any other rights relating to the
solutions.
11.3 By Customer.
Customer will defend Cartegraph and its Related Parties from and against any Action brought against
Cartegraph or one of its Related Parties by a third party (other than by Cartegraph or another Cartegraph
Related Party) to the extent relating to, resulting from, or arising out of any: (a) any violation of any Law
caused by the use of or access to the Solutions by Customer; or (b) any claim or allegation by a User or
other third party relating to use of or access to the Solutions or any Services by Customer. Customer will
only pay those Losses finally awarded against Cartegraph in any such Action or those Losses agreed to
in a monetary settlement of such Action, as applicable.
11.4 Conditions.
All obligation of each party to defend or indemnify the other party or any Related Party under this
Agreement are conditioned upon the party seeking defense or indemnification (the "Indemnified Party")
providing the other party with: (a) prompt notice of any such claim for indemnification or defense after
receiving notice thereof; (b) sole control over the defense and settlement of such claim, provided that any
settlement that will require the other party to assume any liability other than the payment of monies will be
subject to the other party's prior written consent; and (c) reasonable assistance in such defense or
settlement (at the indemnifying or defending party's expense).
12. Limitation on Liability.
IN NO EVENT WILL CARTEGRAPH BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF
LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR
OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THIS AGREEMENT,
INCLUDING THE USE OF OR ACCESS TO THE SOLUTIONS OR ANY SERVICES OR THE
CARTEGRAPH TECHNOLOGY (OR ANY CARTEGRAPH DATA), EVEN IF CARTEGRAPH HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF DATA,
OPPORTUNITY, LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR
PROCUREMENT OF SUBSTITUTE SERVICES. CARTEGRAPH'S TOTAL CUMULATIVE LIABILITY IN
CONNECTION WITH THIS AGREEMENT, THE SOLUTIONS, AND ALL SERVICES PROVIDED UNDER
THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE
FEES PAID TO CARTEGRAPH HEREUNDER IN THE 12 MONTH PERIOD IMMEDIATELY
PRECEDING THE EVENT GIVING CAUSE TO SUCH LIABILITY. CUSTOMER AGREES THAT THE
FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND
ACKNOWLEDGE THAT CARTEGRAPH WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT
THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, CARTEGRAPH'S LIABILITY IS
LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13. Insurance.
If Cartegraph will provide Services at Customer's location, Cartegraph will carry commercial general
liability insurance with a limit of $1,000,000 per occurrence and a $2,000,000 aggregate limit, business
auto liability insurance with a limit of $1,000,000 and workers compensation insurance with statutory
coverage.
14. Confidentiality.
14.1 Protection.
Each party (the "Receiving Party") may from time to time receive or otherwise obtain data or information
regarding the business, finances, services, or technology of the other party (the "Disclosing Party"),
including, without limitation, technical, advertising, marketing, sales, financial, pricing, employee,
customer, and planning information, or any other information that by its very nature the Receiving Party
should know is confidential ("Confidential Information"). The Receiving Party will not use any Confidential
Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will
disclose the Confidential Information of the Disclosing Party only to the employees or permitted
contractors of the Receiving Party who have a need to know such Confidential Information for purposes
of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving
Party's duty hereunder. The Receiving Party will protect the Disclosing Party's Confidential Information in
the same manner as the Receiving Party protects its own confidential information of a similar nature and
with no less than reasonable care.
14.2 Exceptions.
The Receiving Party's obligations with respect to any Confidential Information of the Disclosing Party will
terminate if such information: (a) was already lawfully known to the Receiving Party as of the Effective
Date; (b) is disclosed to the Receiving Party after the Effective Date by a third party who had the right to
make such disclosure without any confidentiality restrictions; or (c) is, or through no fault of the Receiving
Party becomes, generally available to the public. The Receiving Party may disclose the Confidential
Information of the Disclosing Party if compelled or required to do so by a court of competent jurisdiction or
other governmental entity having jurisdiction over the Receiving Party, provided that the Receiving Party
provides the Disclosing Party with notice of such requirement and provides reasonable assistance to the
Disclosing Party in any attempts to contest such disclosure or obtain a protective order or other applicable
limitation with respect to such disclosure. In any event, the Receiving Party will be entitled to receive
payment of its expenses and costs actually incurred in responding to such disclosure request and will
disclose only such portion of any Confidential Information as it is legally compelled or required to disclose.
14.3 Return of Confidential Information.
The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the
Disclosing Party in the Receiving Party's possession or control and permanently erase all electronic
copies of such Confidential Information promptly upon the request of the Disclosing Party or when such
Confidential Information is no longer needed in connection with its performance under this Agreement,
whichever comes first. At the Disclosing Party's request, the Receiving Party will certify in writing signed
by an officer of the Receiving Party that it has fully complied with the foregoing obligations.
15. Governing Law.
The interpretation of the rights and obligations of the parties under this Agreement, including, to the
extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all
respects exclusively by the laws of the state/province where the Customer has its principal place of
business. Each party agrees that it will bring any action or proceeding arising from or relating to this
Agreement exclusively in a federal or state/provincial court in the state/province where the Customer has
its principal place of business, and each party irrevocably submits to the personal jurisdiction and venue
of any such court in any such action or proceeding or in any action or proceeding brought in such courts.
16. Non -Solicitation.
During the term of this Agreement and for a period of 12 months thereafter, Customer will not, directly or
indirectly, for itself or on behalf of or in conjunction with any other third party, solicit, induce, hire, contract
with, or engage the employment of an employee of Cartegraph, unless Customer: (1) obtains the prior
written consent of Cartegraph, as applicable; and (2) pays Cartegraph as applicable a fee to be mutually
agreed upon. If Customer directly employs or contracts with an employee of Cartegraph without the prior
written consent of Cartegraph, Customer shall pay as damages 2 times the then yearly salary of the
employee in question. The parties acknowledge and agree that the foregoing is not intended as a penalty
of any kind but as reasonable and adequate compensation to Cartegraph in the event Customer should
directly employ or contract with an employee of Cartegraph without the prior written consent of
Cartegraph.
17. Force Majeure.
Neither party will be held responsible for failure or delay in the performance of any obligation under this
Agreement, with the exception of the obligation to pay Fees, if such failure or delay is due to acts of God,
war, terrorism, strikes, boycotts, labor disputes, fire or other loss of facilities, accident or any other cause
beyond its control (each, a "Force Majeure"). If the performance of any obligation under this Agreement
by either party is prevented, restricted or interfered with by reason of a Force Majeure event, the party
whose performance is so affected, upon giving prompt notice to the other party, will be excused from
such performance to the extent of such Force Majeure event, provided that the party so affected will take
all reasonable steps to avoid or remove such causes of non-performance and will continue performance
hereunder with dispatch whenever such causes are removed.
18. Notice.
All notices, reports, consents, authorizations and approvals to be given by a party hereunder will be in
writing and will either be via: (1) hand -delivery; (2) reputable overnight mail service; (3) facsimile
transmission, provided that an original copy of a transmission will be delivered by some other means
permitted under this Agreement; or (4) certified mail, return receipt requested, to the other party at its
respective addresses set forth above. All notices will be effective upon receipt (or when delivery is
refused), or 3 business days after being deposited in the mail as required above, whichever occurs
sooner. Either party may change its address for notice by giving notice of the new address to the other
party.
19. Additional Terms.
Unless otherwise amended as provided herein, this Agreement will exclusively govern Customer's access
to and use of the Solutions and all Services and is the complete and exclusive understanding and
agreement between the parties, and supersedes any oral or written proposal, agreement or other
communication between the parties. Except as expressly set forth in this Agreement, this Agreement may
be modified or amended only in writing signed by both parties. If any provision of this Agreement is held
to be unenforceable, that provision will be removed to the extent necessary to comply with the law,
replaced by a provision that most closely approximates the original intent and economic effect of the
original to the extent consistent with the law, and the remaining provisions will remain in full force. Neither
this Agreement nor any rights or obligations of Customer hereunder may be assigned without the prior
written approval of Cartegraph. Any assignment in violation of the foregoing will be null and void.
Cartegraph may assign this Agreement to any party that assumes Cartegraph's obligations hereunder,
including by sale, merger, consolidation, or operation of law or otherwise. Cartegraph may subcontract its
obligations under this Agreement, provided that Cartegraph remains responsible for compliance with the
applicable terms of this Agreement as to those obligations. The words "include," "includes" and "including"
means "include," "includes" or "including," in each case, "without limitation." All waivers under this
Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
The preprinted terms of a purchase order or any other similar document will not apply to or modify this
Agreement. The parties hereto are independent parties, not agents, employees or employers of the other
or joint venturers', and neither acquires hereunder any right or ability to bind or enter into any obligation
on behalf of the other. In the event of any litigation or other proceeding between the parties relating to this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and other reasonable costs
incurred in connection therewith and in pursuing collection, appeals, and other relief to which that party
may be entitled. Customer gives Cartegraph permission to use Customer's name or logo for public press
releases and customer stories. Cartegraph provides the Solutions, including related software and
technology, for federal government end use as a "Commercial Item" as that term is defined at 48 C.F.R.
§2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software
Documentation", as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with
48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Solutions are
provided to the Customer with only those restricted rights as provided under the terms and conditions of
this Agreement. If a government agency has a need for rights not conveyed under these terms, it must
negotiate with Cartegraph to determine if there are acceptable terms for transferring such rights, and a
mutually acceptable written addendum specifically conveying such rights must be included in any
applicable contract or agreement.
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