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Home My WebLink About20173869.tiffMEMORANDUM TO: Esther Gesick, Clerk to the Board November 7, 2017 FROM: Ryan Rose, Chief Information Officer SUBJECT: American Association of State Highway and Transportation Officials License Software Master and Supplemental Agreement BOCC Approval Date: November 13, 2015 Public Works Department utilizes the AASHTOWare Pavement ME Design software for pavement design. Each year we are required by the American Association of State Highway and Transportation Officials to sign a Supplemental Agreement. The annual cost of this software is $5500.00. The agreement has been reviewed and approved by Legal. It is recommended that the BOCC approve the agreement for one year period for a total of $5,500. 2017-3869 cc: ZT C RR) I I 13f 17 BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW/ WORK SESSION REQUEST RE: American Association of State Highway and Transportation Officials Pavement Software License DATE: September 19, 2017 PERSON REQUESTING: Ryan Rose Brief description of the problem/issue: American Association of State Highway and Transportation Officials, Incorporated provides software and services to Weld County. The software is used by the Public Works department to manage the pavement design for the County. This agreement is to extend the license for an additional year. The cost has been accounted for in Public Work's budget. DEPARTMENT: Information Technology \1% What options exist for the Board? (Include consequences, impacts, costs, etc. of options) American Association of State Highway and Transportation Officials, Inc. specializes in this software. Recommendation: The agreement has been reviewed and approved by Legal. It is recommended that the BOCC approve the agreement for the one year period for a total of $5,500. Julie Cozad, Chair Sean P. Conway Mike Freeman Steve Moreno Barbara Kirkmeyer Approve Recommendation Ae. Schedule Work Session Other/Comments: CONTRACT AGREEMENT EXTENSION/RENEWAL BETWEEN THE WELD COUNTY DEPARTMENT OF Information Technology AND American Association of State Highway and Transportation Officials This Agreement Extension/Renewal ("Renewal"), made and entered into nal day of Qagger, ZQl.L by and between the Board of Weld County Commissioners, on behalf of the Weld County Department of jnfarmation Technology, hereinafter referred to as the "Department", and American Assodatign of State Highwav and Transportation Officiak hereinafter referred to as the "Contractor". WHEREAS the parties entered into an agreement (the "Original Agreement") identified by the Weld County Clerk to the Board of County Commissioners as document No.2015-2477, approved on 7/29/2015. WHEREAS the parties hereby agree to extend the term of the Original Agreement in accordance with the terms of the Original Agreement, which is incorporated by reference herein, as well as the terms provided herein. NOW THEREFORE, in consideration of the premises, the parties hereto covenant and agree as follows: • The Original Agreement will end on 6/30/2017. • The parties agree to extend the Original Agreement for an additional Qhe year period, which will begin 7/1/2017, and will end on 6/30/2018. • The Renewal, together with the Original Agreement, constitutes the entire understanding between the parties. The following change is hereby made to the Contract Documents: • All other terms and conditions of the Original Agreement remain unchanged. IN WITNESS WHEREOF, the parties hereto have duly executed the Agreement as of the day, month, and year first above written. CONTIMCTOR: Frederick G. Wright, Executive Director Printed Name Signature ATTEST Weld County clerk to the Board BY: ditif4A) 0_0-4 RO.C114itaL Deputy Clerk to the Board 861 BOARD OF COUNTY COMMISSIONERS WELD COUIf1'Y, COLORADO Julie Cozad, Chair AS TO h BSTAN Head 02o/.3t ? AMERICAN ASSOCIATION OF STATE HIGHWAY AND TRANSPORTATION OFFICIALS LICENSE SOFTWARE SUPPLEMENTAL AGREEMENT This License Software Supplemental Agreement (hereinafter, "Supplemental Agreement") is made this , day of , 201_, by and between the American Association of State Highway and Transportation Officials, Inc., a corporation of the District of Columbia, with offices at 444 N. Capitol Street, N.W., Suite 249, Washington, D. C. 20001, (hereinafter AASHTO), and the organization named below (hereinafter the LICENSEE), for the purpose of licensing and providing specific Software Products and providing development support, maintenance and enhancements to the licensed Software Products, as described herein. Organization/LICENSEE Name: Weld County Address: 1401 N. 17th Ave City/State/Zip Code: Greeley, CO 80631 Table 1: Software Products and License Periods covered under this Agreement: Software Product License Period AASHTOWare® Pavement ME Design Individual Workstation for one (1) workstation July 1, 2017 through June 30, 2018 DEFINITIONS: "Software Product" and "Software Products" means the Software listed in Table 1 as described in the current AASHTOWare® Catalog (hereinafter, the "Catalog") and documentation, including updates, upgrades, and additions. "Software" includes all software tools, files, programs and code. "Documentation" means any and all manuals and other materials pertaining to the Software that are furnished to LICENSEE by AASHTO. "Work Plan" shall mean the planned maintenance, support and enhancement activities for specified Software Products published by AASHTO. Page 1 of 6 "License Period" shall mean the dates of the license(s) for the Software Product(s) stated in Table 1. TERMS: 1. Grant of License. AASHTO hereby grants, and the LICENSEE accepts, a limited, nontransferable and nonexclusive license to use the Software Products under the terms and conditions of this Agreement. All Software Products covered under this Agreement are owned by AASHTO. LICENSEE's rights under this Agreement are those of a licensed user only, and the Software Product(s) shall at all times remain the property of AASHTO. Any use of the Software Products not expressly permitted under this Agreement is prohibited. 2. Sunport. AASHTO shall provide support, maintenance, and enhancements based on the Work Plan for the applicable Software Product(s). In addition, AASHTO shall make available to the LICENSEE all published modifications or updates to the Software Product(s) made by AASHTO, or caused to be made by AASHTO, during the term of this Agreement. 3. License Fees. LICENSEE shall submit a request, in the manner determined by AASHTO, specifying the Software Products and licensing options requested by LICENSEE. LICENSEE shall pay a license fee for each Software Product licensed hereunder based on the fee schedules in the Catalog for the applicable Software Products and licensing options. If the term of the license is greater or less than one (1) year, LICENSEE shall pay a pro -rated license fee based on the term set forth in paragraph 8. License fees are not refundable or otherwise pro -ratable. AASHTO shall invoice LICENSEE for the applicable fees, and LICENSEE shall make payment of such fees within 60 calendar days of receipt of the invoice. 4. Format. AASHTO may make Software Products available in electronic media format or other formats at its discretion. LICENSEE will be provided with a registration code or enabling key to access Software Products that are available electronically. Disabling Software enabling key protection is prohibited. 5. Use and Installation. (a) Software Products are for LICENSEE's internal use only. LICENSEE shall not permit or allow any person other than LICENSEE's designated employees to use, copy or have access to the Software Products, directly or indirectly, in any form or media. (b) LICENSEE may install and use a Software Product on a single computer at a single facility or office location of LICENSEE in the United States and its territories. A Software Product may be transferred from one computer to another at the same location, provided the Software Product is completely removed from the first computer and is accessible on only one computer at a time. In order to receive a new enabling key, LICENSEE must certify to AASHTO that the earlier Software Product installation has been removed. Use of a Software Product at another location requires a separate license. If a Software Product is installed on a server connected to LICENSEE's internal network, access to the Software Product must be limited to a single computer at a single facility or office location within the network. LICENSEE may not share or use the Software Product concurrently on different computers or transfer access to another location. (c) If the Software Product is licensed as an upgrade to a previous version, Licensee is only permitted to install (or provide access to) the upgrade on the single computer that is already running the previous version of the same Software Product, subject to transfer of the Software to another computer at the same location as provided in subsection (b). (d) LICENSEE may not disable, hide, or modify the license screen, splash screen or any copyright or trademark notice in the Software Product. Page 2 of 6 6. Reverse Engineering. Modifications and Derivative Works. LICENSEE shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software Products. LICENSEE shall not modify, adapt, translate or make derivative works based on the Software Products. 7, Primary Contacts. LICENSEE shall submit to AASHTO a completed Primary Designee Form designating the employee or representative of LICENSEE who shall serve as the primary contact for matters relating to the support of each Software Product, and the employee or representative of LICENSEE who shall serve as the primary contact for matters relating to invoices and related financial communications. All communications regarding these matters should be directed through the designated contact person. 8. Term. The term of this Agreement for each Software Product shall be the applicable License Period. 9. Termination. This Agreement shall terminate automatically upon expiration of the applicable License Period. In addition, AASHTO may terminate this Agreement at any time without prior notice for LICENSEE's breach of any term or condition of this Agreement. LICENSEE may terminate this Agreement by providing notice to AASHTO. The rights granted to LICENSEE hereunder shall immediately terminate upon termination of this Agreement for any reason. 10. Removal and Return of Materials. Upon termination of this Agreement for any reason, LICENSEE shall immediately remove and destroy all copies of the Software Product(s) on LICENSEE's computer(s) and delete them from memory. LICENSEE shall destroy or return to AASHTO all other forms of the Software Product(s), documentation and related materials, including copies and partial copies, and certify to AASHTO that all of the Software Products(s) have been destroyed or returned. All returns must be to the location from which they were originally shipped unless otherwise instructed by AASHTO. The provisions of this paragraph shall not apply if termination results from the expiration of a License Period and LICENSEE executes another Agreement to license the Software Product(s) for an additional term. 11. Permission to Copy. LICENSEE may make one copy of the Software and Documentation for backup purposes. The original and any partial or complete copies of the Software Product(s) shall be the property of AASHTO. Any permitted copy that LICENSEE makes must contain the same copyright, trademark and other proprietary notices that appear on or in the Software Product(s). No other copying is permitted. 12. Responsibilities of the LICENSEE. LICENSEE shall be exclusively responsible for the supervision, management, and control of its use of the Software Product(s) provided under this Agreement, including but not limited to: (1) assuring proper machine configuration, (2) establishing adequate backup plans for the Software, and (3) implementing sufficient procedures to satisfy its requirements for security and accuracy of input, security of the output, proper execution of Software, and accurate reproduction of output as well as restart, and recovery in the event of a malfunction. 13. Non -Disclosure and Unauthorized Use. LICENSEE acknowledges and agrees that the Software Products licensed hereunder constitute valuable proprietary and confidential materials of AASHTO. LICENSEE shall take all reasonable steps to ensure that the content of the Software Products is not disclosed to, copied or used by any unauthorized person or third party. LICENSEE agrees to notify AASHTO immediately of the unauthorized possession, use, or knowledge of the Software Products(s) supplied under this Agreement, by any person or organization not authorized by this Agreement to have such possession, use, or knowledge. LICENSEE will promptly furnish full details to AASHTO, assist in preventing a recurrence, and cooperate with AASHTO in any litigation against third parties deemed necessary by AASHTO to protect its proprietary rights. Page 3 of 6 LICENSEE's compliance with this paragraph shall not be construed in any way as a waiver of AASHTO's rights to recover damages or obtain other relief against LICENSEE for its negligent or intentional harm to AASHTO's proprietary rights, or for breach of contractual rights. 14. Defects. In the event there are defects in a Software Product, LICENSEE shall provide written notice to AASHTO or its designated contractor with a detailed description of the defects. Defects will be addressed by the contractor based on the priorities and procedures in the applicable Work Plan. 15. Catalog.AASHTO may modify or change the Catalog and add or remove Software Products from time to time at its sole discretion. 16. Transfer Prohibited. LICENSEE shall not sublicense, assign, sell, rent, lease, loan, or otherwise transfer the Software Product(s) or any of LICENSEE's rights or obligations hereunder. Any action by LICENSEE contrary to this paragraph shall be null and void. 17. Reservation of Rights and Ownership. The Software Products are protected under U.S. copyright laws and international treaties, and are licensed, not sold. AASHTO retains all right, title, and interest, including patent, copyright, trademark and all other intellectual property rights, in and to the Software Products (including, but not limited to, any images, photographs, animations, video, audio, and text incorporated therein) and any copies of the Software Products. AASHTO trademarks may be used only in the manner and form authorized by AASHTO. All rights not expressly granted under this Agreement are reserved to AASHTO. 18. WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE PRODUCTS HEREUNDER ARE LICENSED "AS IS" AND AASHTO DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON - INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED UNDER LAW. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE PRODUCTS. AASHTO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PRODUCTS WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATIONS OF THE SOFTWARE PRODUCTS WILL BE UNINTERRUPTED OR ERROR - FREE. LICENSEE ALSO ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE PRODUCTS TO ACHIEVE LICENSEE'S INTENDED RESULTS, AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE PRODUCTS. 19. LIMITATION OF LIABILITY. AASHTO SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, PERSONAL INJURY, PROPERTY LOSS, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF, RELATING TO, OR BASED ON THE USE OF THE SOFTWARE PRODUCTS, UNDER ANY THEORY OF LIABLITY INCLUDING NEGLIGENCE, EVEN IF AASHTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, AASHTO'S ENTIRE LIABILITY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE APPLICABLE SOFTWARE PRODUCT(S) UNDER THIS AGREEMENT. 20. Patent. Copyright and Trade Secret Infringement. AASHTO will defend at its expense any action brought against the LICENSEE to the extent that it is based on a claim that the Software Page 4 of 6 Product(s), provided under this Agreement and used within the scope of the license hereunder, infringes a United States copyright or United States letters patent, or a trade secret. AASHTO shall have no liability for any claim of copyright, patent or trade secret infringement made on: (1) use of other than the latest unmodified release of the materials from AASHTO if such infringement would have been avoided by use of the latest materials, or (2) use or combination of the licensed materials with non-AASHTO programs or data if such infringement would have been avoided by use or combination of the licensed materials with other programs or data. The foregoing states the entire liability of AASHTO and LICENSEE's exclusive remedy with respect to infringement of any copyright, patent or trade secret by the Software Product(s) or any part thereof, and AASHTO shall have no liability with respect to any other proprietary rights. 21. Hold Harmless. To the extent allowed Ohio law, LICENSEE shall be responsible for all claims, losses, liabilities, judgments, interest, and settlements, caused by LICENSEE that arise out of, or relate to the installation and use of the Software Products. 22. Purchase Orders. In the event of any conflict between the terms and conditions of this Agreement and terms and conditions of any subsequent purchase order, the terms and conditions of this Agreement shall control. 23. Headings. The captions and headings are included for ease of reference only and will be disregarded in interpreting or construing this Agreement. 24. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, fire, riot, judicial or governmental action, labor dispute, act of God or other causes beyond the control of either party, the party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes. 25. Enforceability. If any provision of this Agreement is determined to be unenforceable or invalid under any applicable statute or rule of law, the remaining provisions of the Agreement shall not be affected and shall remain in force and effect. 26. Exclusive Remedies. The remedies set forth herein shall be LICENSEE's exclusive remedies under this Agreement. 27. Waiver. A waiver of any term, provision or condition of this Agreement shall not be deemed a continuing waiver of any such term, provision or condition. No waiver shall be valid or binding unless agreed to in writing and signed by authorized representatives of AASHTO and LICENSEE. 28. Drafting. Each party agrees and acknowledges that no presumption or inference shall be made or drawn against the drafter or drafter(s) of this Agreement. 29. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties and each of their respective successors assigns, provided that LICENSEE may not assign this Agreement without the prior written consent of AASHTO. 30. Authorized Person. The person executing this Agreement does hereby declare, represent, acknowledge, warrant and agree that he or she is duly and fully authorized to execute this Agreement so as to legally bind LICENSEE. 31. Embedded Third Party Software. Software programs or modules under license from third parties may be embedded in the Software Products. LICENSEE agrees to comply with the terms and conditions of use of such third party licenses, if any. Page 5 of 6 32. Taxes. LICENSEE shall be responsible for payment of any applicable state and local sales, use, general excise or similar tax arising out of or relating to the licensing and use of the Software Products under this Agreement. 33. Survive Termination. Paragraphs 6, 13, 16-21 and 35 shall survive termination of this Agreement. 34. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all proposals, communications and agreements between the parties, oral or written, including any Master Agreements, relating to the subject matter of this Agreement. This Agreement may not be amended or modified except in writing signed by both parties. 35. Governing Law. This Agreement shall be exclusively be governed by and construed in accordance with the laws of the District of Columbia without giving effect to its conflicts of law rules. Any dispute, claim or controversy arising out of or in any way related to this Agreement shall be submitted for resolution before, and each party expressly consents to the exclusive jurisdiction and venue of the United States District Court for the District of Columbia and the Superior Court for the District of Columbia, as applicable. Any judgment thereon may be entered or otherwise enforced in any court of competent jurisdiction For AASHTO: Name: Signature: Title: Date: Frederick G. Wright Executive Director 10/24/2017 For LICENSEE: Name: Julie A. Cozad Signature:`Q(fz19' Title: Chair, Board of We1L/ County Commissioners Date: NOV 13 2017 Page 6 of 6 Hello