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RESOlUTlON OF THE -
BOARD OF COUNTY COMM(SSIONERS �� <
OF PtTKiN COUNTY,COLORADO, ; . '�;;
APPROVING CONTRACTS WITH EAGLE COMPUTER SY5TEMS ,���;-,..
FOR CQMPUTER SOFTNARE INSTALLATION,TRAINING, ';,
AND MAINTENANCE FOR TNE COUNTY ASSESSOR AND TREASURER
Resolution No.96-� �
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REC�TALS '' .r 4
1. The Board of County Commissioners of Pitkin County, Colorado, {hereinafter, the j - , .
"Board") has previousiy authorized and budgeted the conversion of the County's computer
information system from a central mainframe computer to a communications network linking �
multiple appiication processors with user workstations,requiring the replacement of the computer
application software curtentiy serving the needs of the County assessor and treasurers offices.
Z. The�e are only a few computer software vendors#hat offer property assessment
administration and tax coliectlon sof[ware tailored to Colorado statutory requirements. Of these,
Eag1e Computer Systems is the oniy one offering software that wi11 run on the County's seiected t�
standard computer ptatfurm and operating system. As the only vendor meeting the Counly's !`
requirements,Eagle CompuYer Systems qualifies for sole source setec4on under the Pitkin County
Procurement Code.
3. Resoiution No.93-170 requires the 8oard to approve of contracts in excess of$25,000 at t
a reguiar or special meeting.
NOW,THEREFORE,BE IT RESOLVED by the Board of County Commissioners of Pi&in County, a�
Coiorado,that(1)it is in the best interest of the County to contract wi#r Eagle Computer Systems �
- for computer sotlware insYallation, training and maintenance fir the County assessor and
treasurer's o�ces,and thaf{2)the County Administrative Services Director is hereby authorized
to execute contracts with Eagle Computer Services for such services,subject to approvai of the -
i form of those contracts by the County Attorney.
1
APPROVED AND ADOPTED ON THE ZSTH DAY OF SEPTEMBER,1996.
�� �
; A7PEST: BpARD OF COUNTY COMMISSIONERS
i '' ,� OF PITKIN GOUNTY,COLORADO
��(��i� ''-'i gy: �;/,w.�.� . ..� �
� nette Jones � �1 mes R.True,Chairman
MANAGERAPPROVAL: D e: ITU'�'�� .
� ��"" APPROVED AS TO FORM:
Suz n e Koncha ,County Manager
�G'�iiZ �.'�v--.--�._„
Tom Oken,Admin.Services Director John Ely n ey �
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SALES AGREEMENT
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The parties to th(s AgreemeM are: Eagle Computer Systems,Inc.,a Colorado corporatlon,("ECS'�and
Pitkin County,Coloredo Treasurer's Office("Cusromer�. • '�,•
ECS hereby agrees to provide and CUSTOMER agrees to o6tain the Products and Services as set forth
in the following attachments:
[ ] Computer Hardware/Supplies Addendum
. [X] Software Sub-License Addendum ..
[Xj IrtstallaUon.Trairting and Sys(em Implemenlation Services Addendum
[X] ECS Software Su6license Addendum
forthe total price of$47,282.00(CUS70MER is tax-exempt)payable as follows: •
i 10°k($4,728.20)plus taxes upon scheduling of installation of lisled Software;
60%($28,369.20)plus iaxes upon delivery and installation;and
Bala�ce due ptus taxes upon acceptance of the system as outlined in this Agreement.
Shipping Mode: UPS Ground {shipping charges are colied).
_ The above price is firm for a period of sixty(6D)days commencing September 18,1996.
THIS AGREEMENT IS THE EXCLUSIVE STATEMENT OF THE ENTIRE AGREEMENT BETWEEN
THE PARTIES,AND SUPERSEDES ANY PRIOR ORAL OR WRITTEtJ REPRESENTATIONS OR
AGREEMENTS BETWEEN THE PARTIES CONCERNING THE SUBJECT MATTER OF THIS ;
' AGREEMENT. THERE AR6 NO WARRANTIES FROM ECS TO CUSTOMER EXCEPT ANY WHiCH �
MAY BE SPECIFIED IN THIS AGREEMENT OR IN OTHER WRITINGS EXECUTED BY ECS.
- EXCEPT FOR ANY SUCH WRITTEN WARRANTIES,THERE ARE NO WARRANTIES BY ECS OF
MERCHANTABILITY OF THE SUBJECTS OF THIS AGREEMENT,OR OF FITNESS OF THE
SUBJECTS OF THIS AGREEMENT. THERE ARE NO WARRANTIES CONCERNING THE SUBJECTS
OF THIS AGREEMENT WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
ANY AMENDMENTS,ADDENDA,AITERATIONS OR MODiFICATIONS TO THE TERMS OR
CONDITIONS OF THIS AGREEMENT SHALL BE fN WRITING AND SIGNED BY BOTH PARTIES.
. THIS AGREEMENT HAS BEEN READ IN ITS�ENTIRETY AND EXECUTED BY AUTHORIZED
;
REPRESENTATIVES OF TNE PARTIES HERETO.
CUSTOMER: EAGLE COMPUTER SYSTEMS,INC.,
a Coforado corporation
ey. �G+f.ti, �. 5���. ey: �i:.,��,_V� ��---C
Prtnt Name: David L.Kunkel,President
Date: /o-�-Q� Date: I��`)6 .
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TERMS AND CONDl770NS ,
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A. DESCR(PTION: CUSTOMER agrees to purchase and ECS agrees to se(f the products tisted on thts '
Agreement and Addenda(the"Products and Services'�. Products supplied may be a proprietary produd �. ,
of ECS or other party whose product ECS provides to CUSTOMER.
B. PAYMENT TERMS: Unless othervvise agreed herein,final'payment for Products and Services
hereunder shaN be due upon delivery. ECS fortnatted invaices will be issued on or after ihe date of
delivery. If in the judgment of ECS,the flnancial condition of the CUSTOMER at any time does not
justify the commencement of continuance of deltvery on the tertns specifted herein,ECS may,in
additlon to all other remedies it may have at law or in equity,make a written demand for fuli or partial •.
payment in advance,suspend Rs perfortnance until such paymerrt is made,or cancel the CUSTOMER's
order. If the CUSTOMER faiis to pay any charges when due and payable,CUSTOMER agrees that ECS - -
shall have the right to invoice and CUSTOMER will pay all costs,including reasonable altomey fees,
expended in colteding overdue charges and a late paymeni charge of 1.5%per monYh but not in excess
of the Iawful maximum on the unpaid balance. Prices and license fees are exclusive of all federal,state,
t municipal or other pofitical subdivision,excise,sates,use,property,occupational,or tike taxes now in
force or enacted in the future and are therefore subject to an increase equal to any such taxes ECS may
be required to coliect or pay upon the sale or delivery of the Products or Services purchased or ftcensed
hereunder.
C. ACCEP7ANCE: CUSTOMER shall be tleemed to have accepted the Producis and Services 30 days
after delivery unless CUSTOMER notifies ECS in writing of any defect;in which case acceptance shall
be 15 days after CUSTOMEF2's receipt of written notice from ECS stating that aH identified defects have
been corrected.
D. DELAY OR FAILURE TO PERFORM: ECS shall be excused for delay or faflure to perform ECS's
obligations hereunder for causes beyond its control including,but not limited to,fire,stortn,flood,
earthquake,explosinn,accident,iliness,ads of a public enemy,war,rebellion,riot,sabotage,
transportation delays,failure of supplier to make deliveries,labor disputes,acts of God,acts of federal, l.
state or local govemments or any agency thereof,and judicial action. �
E. SECURITY INTEREST: CUSTOMER hereby grants to ECS a first security interest in the products to
' secure full payment therefor. CUSTOMER agrees,upon request of ECS,to execute and deliverto ECS
a financing statement and/or other documents evidencing such security interest in a fortn satisfacFOry for
filing with the appropriate govemment authorities.
, F. TERMINATION: ECS shall have the right to terminate this Agreement In the event the occurrence of
any one of the following is not remedied within thirty(30)days of receipt of written notice thereof:
1. CUSTOMER has not made financial artangements satisfadory to ECS for the purohase of the
Products orServices,or
2. CUSTOMER neglects or fails to pertortn or observe any of its existing or future obligations
hereunder,including wilhout limiiing the generality thereof,the timely payment of any sums due
to ECS,or �
3. If any assignment is made of CUSTOMEft's husiness for the 6enefit of creditors,or if a petition
in bankrvptcy is fiied by or against CUSTOMER,or if a receiver,trustee in bankniptcy or sfmilar
officer is appointed to take charge of all or part of its property or if CUSTOMER is adjudicated as
banktupt.
Tertnination of this Agreement shall not affect CUSTOMER's pre-tertnination obligations and any such
tertnination is without prejudiCe to the enforcement of any undischarged obligations existing at the time _
of tertnination.
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G. PATENT INDEMNITY: The CUSTOMER will hold ECS hartnless against any expense,judgment or ;�
loss for infringement of any patents,copyright or trademarks which result from ECS's compliance with
CUSTOMER's designs,specifications or instructions. No costs or expenses will be incurred for the '-;'
account of ECS wfthout the prior written consent of ECS. ECS wiil be required to defend and pay the '
cost of defending any claim or suit against CUSTOMER based on any infringement of such patent right
by reason of the equipment and software fumished hereunder constituting an infringement of any letter
of patent
H. LIABILITY: ECS shall not be Ba61e for any loss,damage or claim resutting from these services,
regardless of the fortn of action,except for loss or damage caused by the negligence of ECS. In no '
- event shali ECS be liable for(1)any speciai,indired,incidental,or consequentiai damage;(2)any
damages resulting from loss of use,data or profits;or(3)any Gaim,whether in contract ortort,that , •
arose more than one year prior to the institution of suit thereon. CUSTOMER agrees to indemnify and
hold ECS hartnless from any loss,claim or damage to persons or propeRy arising out of this Agreement
or CUSTOMER's use or possession of the Products and Services,provided that such loss,cfaim or
damage was not caused by the fault of ECS. ECS agrees to indemnify,hold harmless and defend
CUSTOMER from any and all liability or loss resulNng from any suits,clafms or actions brnught against
CUSTOMER which result directly or indiredly from wrongful or negligent actions of ECS in the
performance of this Agreement. This indemnification will survive the tertnination of this Ag2ement.
CUSTOMER's remedies against ECS shall be limited to replacement or repair of any defective Products
or Services,or,at the discretion ot ECS,a refund of all sums paid by CUSTOMER to ECS for the
defective Producls or Services and for a�y other goods or services 2ndered substantially worthless
because of the defective Products and Servfces.
I. MISCELLANEOUS:
1. ASSIGNMENT: This Agreement is not assignable by CUSTOMER without the prior written
consent of ECS,nor by ECS without the prior written consent of CUSTOMER. Any such
attempted assignment shali be void. t.
2. NOTICE: Ail notices which CUSTOMER or ECS may have cause to give to the other shaii be
delivered In writing,effeclive as of the time of se�ding,and effective if sent to the last known
address of the party to whom it is directed.
3. APPLICABLE LAW: This Agreement shall be govemed by the laws of the State of Colorado.
4. SEVERABILITY: If any provision of this Agreement is held to be void or unenforceable by the
cou�is in connection wilh litigation over this Agreement,the validity of the remaining provisions
shall not be affeded and the rights and obligations of the parties shall be construed and enforced
as if the contract did not contain the particular provision held to be void or unenforceable.
5. LEGAL EXPENSES: If there is legat action conceming the subject matter of this Agreement,
and the prevailing party shall be entitled to recover its reasonable attomey's fees and other
litigation expenses,such as those far discovery proceedings,and employee expenses arising
from pursuit of such legal action. if either party prevails only in part,then it shali be entitled to
recover that part of Its litigatio�expenses as ihe court may deem just. .
6. ARBITRATION: Any controveisy,dispute,ar question arising out of,in connection with,or in
relatian to this Agreement or its interpretation,perfortnance,or non-periormance,or any breach
thereof of may,at the option of either party be detertnined by arbitration i�accorclance with the
rules of the American Arbitration Association. The costs and expenses of such arbitration, ,
including the compensation of the arbitratars and the stenographer employed by them,shall be
paid by the party against whom the arbitratar renders a decision. The decision of the arbitrator _
shall be final and binding upon the parties hereto and may be entered as a final decree of � -
judgment fn any couA of competent jurisdiction. After the making of the awafd,which may I
indude an award of damages,by the arbitrator as herein provided,either of the parties to this
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Agreement shall have the rigM to commence an adion tn any court of competent jurisdiction!o
enforce the award rendered hereunder. 7he party against whom judgment is rendered agrees to :�,
pay reasonabie attamey fees and costs,as well as any other damages sought.
7. DATE OF AGREEMENT: This Agreement shall be effective on the last date of signfng by the •1�''
several parties.
8. AMENDMENT: This Agreement may onty be amertded by a writing which is executed by a!!
parties hereto.
' 9. COMMERCIAL PURPOSE; CUSTOMER acknowledges that R is entering into this Agreement �
for a commercial purpose,and that this is not a consumer transacNon.
t0. NO JOINT VENTURE: Nothing contained in this Agreement shall be construed to imply that a
joirtt vertture or partrtership is created by and between the paRies hereto.
' 11. EXCUSABLE DELAYS: 8oth parties shat(be excused for delay in the pedortnance of any
` obligations hereunder when such delay is the result of or attributable to the elemenis,acts of
God,govemmental authority,delays in transportation or any other cause beyond their
reasonable control.
-� 12. DOCUMENTS CONS7RUED TOGETNER: The CUSTOMER's Request for Proposal,ECS's
Proposal,and all documents referred to in the specifications and contract to be entered irrto
between ECS and CUSTOMER and ail modi(ications of said document,shall be construed
together as one document.
13. INSURANCE: At the time of execution of this Agreement ECS wili be required to carty
insurance as required by CUSTOMER for contracts of this type.
14. LABOR LAWS: ECS will be required to comply with all existi�g State a�d Federal Labor Laws in
the perfortnance of the work in this Agreemertt.
15. WARRANTY: ECS warrants the hardware and software for a period of 90 days after fts
' installatian and certification. ECS will provide on-site maintenance of hardware and software
during our nortnal business hours.
'i 16. EXTRA WORK OR MATERIALS: CUSTOMER shall have the right to make alterations,
i eliminations and addRions to the work. The same shaN fn no way make void the AgreemeM or
release the sure on any bond to insure the pertortnance thereof. The value oF such ex[ra work
� shall be agreed upon by CUSTOMER and ECS.
� 17. EQUAL OPPORTUNITY EMPLOYMENT: ECS will meet all State and Federel Laws appliCable
to Equal Employmerrt Opportunity{EEO).
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SOFTWARE SU8-I.ICENSE ADDENDUM TO SALES AGREEMEMT �
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�Y
� ECS hereby grants to CUSTOMER,tts substdiaries,and divlsions a non-exclustve and nontransferable
license to use,under the terms and conditions set forth fn ihis Agreement,the computer software known
as: •
, Product Descriotion Price
77MS+p1us Base Module Including ORACl.E7 Runtime $3,OOp
Tax Bilttng and Catlectioa 15,000
T"_ �`
Disbursemenfs 3,750
Three(3)additional users($2�75 each user} g,525 ;
Clea�Access Report Wrtter-single user 575
t
whtch kems shatl hereinafter be collectively referted to as the"�icensed Software."
CUS70MER's use of.the software is timited to an four(4j tertninal single system installation.
Unauthorized use of the software on any additional tertninal or system will constitute rental of the
� soRware at the rate of$100,00 per day for each additionai terminal or system. Additional irtstallations
' will be installed by ECS at the prices for additional installations ptevailing at that time.
i
, CUSTOMER understands and agrees Yhat ECS itself may be under license(s)with resped to software
- abtalned from,or under ECS's license(s}with other vendors. CUSTOMER further undersiands that this
Agreement is subject to said ficense(s}and afi madifications thereof made subsequent to the effective
date of this Agreement and CUSTOMER agrees to abide by the terms of such Itcense(s)all of which are
by addendum incorporated herein.
• Licensed Software $ 28,850
lnkials:
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CUSTOMER: �C� ECS;��
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TERMS AND CONDITIONS �
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A. DEFINITIONS: "Software"refers to each of the computer software products described herein. Each '�..� .
Software Produd consisls of both computer software and software documentation(e.g.,user manual, '
� technical manual,systems manual,keyboard fundion strip,and like items). Addit(ons,comedions,
� updates artd enhancemeots of a Software Ptodud also fall within the definition of Software Product.
Software refers both to the intangible information comprising the produd and,as ihe context requires,
every copy of the infortnation. Use means copyir�g all or any portion of ihe Ucensed Software from
storage units or media into a CPU or using any Licensed Software in the course of the operatlon of any
CPU or in support of the use of any CPU or software,or photocopying any portion of the sofhvare as Y �
defined a6ove. End User means a company,flrm ar individuai whose only Purpose in obtaining a
sublicense for Licensed SoRware is for its own in-house use. Persons providing data processing services .
commonly known in the industry as 71me Sharing or Service Bureaus,or persons intending to reseli,
Vade or barter in fhe Licensed SoHware are explicitly exctuded from End User status.
B. SCOPE OF LICENSE: In implementation of this License,ECS shali fumish CUSTOMER with a copy
of the Lice�sed Sofiware on machine readabfe media and with associated user instrud'+ons and
reference documentation,all of which materiai may be marked with a trade secret notation such as:
"The informaiion herein are trade secrets and proprietary properties of ECS" The License granted under
and subject to the tertns and conditions of this Agreement authorized CUSTOMER to use the Licensed
Software as an End User on one CPU and the granting of sublicenses is not permitted. CUSTOMER
hereby acknowledges that simi(ar soRware may be licensed or leased!o other users.
_ C. COPIESlMODIFICATIONS: CUSTOMER may make no more than three(3)copies of a!!or any part
of the Licensed Software for CUSTOMER's in-house use. CUSTOMER may modify any of the licensed
Software for its own use and merge it into other program material to fortn an updated woric_ The use of
any portion of the licensed Software included in an updated work shall remain subject to ail terms and
conditions of this Agreement. In the eveM this License is terminated the Licensed Software will be
compietety removed from the updated work and treated as if permission to modify had never been
granted. CUSTOMER agrees to reproduce and inGude the proprietary and trade secret notices both in �
and an every copy of the Licensed SoRware in any form including paAfal copies and modificafions of the
' Licensed Soflware.
D. WARRANTY: The Ltcensed Soflware may have been developed by and may be the proprietary
property of a company other thaa ECS. ECS warrants that k has the legal right to license fhe Software,
and shait indemnify and hold CUSTOMER,its agenis and employees,hartnless from any loss,damage
or liability for infringement of any United States Patent right,copyright or other trade secret right with
respect to the use of the pracess and anciliary material delivered hereunder,provided tbat ECS is
notified in writing within ten(10)calendar days of any suit or Gaim against the CUSTOMER,that
CUSTOMER pertnits ECS to defend,compromise or settte the said cfaim of inhirrgement and gives ECS
all available infortnation,assistance and authority to enable ECS to do so,and provided that
CUSTOMER fully observes all the terms and condftions of this Agreement. ECS shail not be responsible
for any compromise made without its consent. ECS's indemnity as to use shall not apply to any
infrirn,7ement arising out of use in combination with other processes or articles where such infringement
would not have occurred in the normal use for which the Ltcensed Soflware was designed. ECS further
warrants that the Licensed Software,when delivered,will conform to current software descriptions;
however,CUSTOMER acknowledges thaf lhe Ltcensed Softwere is of such complexity that it may have
inherent defecls and agrees that as ECS's sole liability and as CUSTOMER's sole remedy ECS will
provide all reasonable programming services to corred documented code errors which ECS's diagnosis
indicates are caused by a defecl in an unattered version of the del'rvered Licensed Software. Th(s
wartanty is valid for a period of 90 days from the date of delivery of the Licensed Software. ECS cannot
and does not wamanty the system against malperformance due to the installation of any other software
not supplied 6y ECS. In the event CUSTOMER modifles the computer program designed by or obtained '
from ECS without prior written pertnission or approvat from ECS,!he Warranty provisions of this f
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Agreement shall immediately become vo(d and ECS shall have no respansibitity whatsoever for the .�
pertortnance of such programs. CUSTOMER Is aware that any modificattons may prevent the proper ti M
installailon or correcc operation of any future saftware updates or enhancements which are issued by the .
software auihor. ECS GRANTS NO IMPLIED WARRANTIES INCLUDING WARRANTIES OF �' '.;•
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NO OTHER EXPRESS ' •
WARRANTIES.
E. CONFIDENTIALITY: ECS acknowledges that during discussions with CUS70MER leading op!o this
Agreement and during its pertotmance,ceRain proprietary or canfidentiaf data of CUSTOMER may be
disclosed to ECS or to ECS's employees or agents. ECS agrees that alt data not nortnaffy availabie
through othersources may be proprietary,and will be safeguartied by ECS with the same degree of care r '`
that it accords to ECS's own proprietary data. In particular. 7)ECS or any of ECS's employees or
agents shatl not divulge,transfer,assign,setl,license,franchise,sublease or oiberwise convey the .
identified CUSTOMER prop�ietary data in any fortn to a thiM party,person ororganization except as
may be specificaliy agreed to in writing by CUSTOMER:and b)in the evertt ECS shaN attempt to use or '
convey any portion of the identified CUSTOMER proprietary data in a manner contrary to the tertns of
this Agreemenf,CUSTOMER shall have the right,in addition to any other remedies available to it,to
injunctive relief enjoining such act,it being acknowledged that other remedies afone may be inadequate.
F. RESPONSIBILIT'F OF CUSTOMER: CUSTOMER Is exclusively responsible for the supervision,
management and coMrol of its use of the licensed Sofcware. Except as provided otherwise in this
Agreement,CUSTOMER agrees: 1)to aot reveal any informatian contained in the Licensed Soflware,or
any part thereof,or any copies thereof,in any torm,to any third party;2}to take ail reasortable
precautions to hold in confidence the design and documentation of the Licensed Software;3)to not
assign,�ease,sublicense or othervuise transfer same,by operation of law or othenvise,in whole or in part,
- diredly or indirectly,fnGuding but not limifed!o any joint venture or combination arrangements between
CUSTOMER and ECS;4)to not exhibit,donate,barter,loan or otherxhse communicate said Licensed
Soflware to any other Brm or person without the express written consent of ECS;�to take ail
appropriate actions by instruction,agreement or otherwise with its empioyees or othe�persons permitted
access to the Licensed Software to satisfy its obligations under this Agreement with respect to use,
protection and security of the Ucensed Software. ECS is hereby authorized to make reasonable �'
i ir�quiries conceming CUSTOMER's campliance herewith and may require CUSTOMER to take
reasonable protedive measures. CUSTOMER is responsible to exercise good business practices,
procedures,and control to monitor the soHware perfortnance,and to notify ECS immediately upon
verifying any software errors.
G. TITI.E: The original and any copies of the Licensed Software,in w�ole or in part,made by
CUSTOMER are and remain the property of ECS,orthe sofMrare author,not the CUSTOAAER.
" H. TERM: This License shall be in effed frorti the date this Agreement is first accepted by ECS and
shali be valid until the License or this Agreement is ofhemise terminated as provided herein.
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INS7ALLATION,TRAINING AND SYSTEM IMPLEMENTATlON SERVICES ' �
ADDENDUM TO SALES AGREEMENT •`�" �'
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ECS witi provlde the foliowing hours of trafning and asststance to CUSTOMER. This training and ;, ' •'-
assistance shall be mufua!!y scheduled between the CUSTOMER and ECS. CUSTOMER agrees to ' -
make the designated empioyees reasonably available fortraining farthe length of time required during I;,�_.
the agreed pe�iod of time. �'>:.,: '
ly�:.,-_�•. -
Descriotion of Services Estimated Rate Amount ''" �
Hours r
Instailation and implementation of new saftware 18 hours S96/hour $1,536 �'�^ r�
G;.`_• ;• •
Conversion of Existing data to new system 80 hours 598/hour 7,880 ;
Assistance with harclware and system software 40 hours 596/hour 3,840 ���'
staging,testing and installation � '
User Training 56 hours $96/hour 5,376 'i"
Integration to CUSTOMER's existing accaunting Unknovm $96/hour
i:
SORW8f6 . �.. .
7ravel Time Unknown $62.50/hour �:;;
Expenses Unknown Cost plus 15%
Total ESTIMATED Services 318�432 �`'
�
CUSTOMER agrees to designate,in writing,a primary contacl to represent CUSTOMER and help �
coordinate CUSTOMER's personnel during the design,developme�t,inslallation,training and
' maintenance of the system. �,�-
; -'�
i Any assistance or suppoR beyond the above specified hours will be provided at ECS'then curtent Houdy '��� .
and Expense Schedule, �
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IMITIALS:
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CUSTOMER: �C� ECS: �C
CUSTOMER Contact: i: i
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ECS SoHware Subticense Addendum �
�
(An executed copy of this addendum must be included w(th any �.,
sublicense agreemen!behveen ECS and the end user)
�:��
SOFTWARE DESCRfPTION �
• TIMS+PLUS is a proprietary apptication software product of Eagle Computer Systems,Inc.(ECS)
• ORACLE7 is a proprietary database produd of Oracle Corporation,a runtime farwhich is
"buqdled"with 71MS+PLUS.
_ • ObjectView is a proprietary software development lool se!of KnowiedgeWare Inc.,a runtime for
which ts"bundied"with T11NS+pLUS. �
+ Eagle Computer Systems,Inc.; Oracle Corporation;and Knowledgeware Irtc.are a!1 fhird paAy
beneficiaries of this addendum which is a required part of any agreement to subiicense -
77MS+PLUS. ,
• Additional software produds may be included in future releases antl will become the subjects of
this addendum. The aathors of such additional software wiil become third party beneficiaries ta
� this addendum.
A. DEFINITION:
1. "ECS"means Eagie Computer Systems,Inc.,of Eagle,Colorado.
2. "ECS Software"meets certain ECS programming,documentalion and support stanqards,is
supported and waRanted by the soRware auihor identified in ihe software documentation and is
.' distributed by ECS.
3. "AU7HOR"means,for each item of Software,the party identified as the author in such item or in
related documeMation.
4. "Software"means the computer soHware identified in this Agreement,together with all related
software documentation,all subsequent documentation,improvemeMs,and updates,in
whateve�medium. (The tertrt"software documerrtatfon"includes without fimitation all user's
- manuals,technical manuals,system manuals,and keyboard function strips,however
designated,related to any computer software licensed aoder this Agreement.)
B. LIMITED WARRANTY AND LIMITATION OF LIABILITY:
1. Each item of Sofrivare is wamanted and supported by the AUTHOR of that item. As used in this
. section,when"AUTHOR"is used in connection with "Sofiware," "Software' shall be
understood to refer to each item of So(tware forwhich AUTHOR is Identified as the author in
such item or related documentation, NO AUTHOR SHALL HAVE ANY LIABIUTY OR
OBLIGATION WHATSOEVER WITH REGARD TO tTEMS OF SOFTWARE FOR WHICH
SUCH PARTY IS NOT IDENTIFtED AS THE AUTHOR.
2. In view of the complex nature of Software,AUTHOR beiieves that the Soflware is not without
flaws,and CUSTOMER acknowledges this fad. However,AUTHOR stands ready to corred
ftaws that are uncovered during operation of the SoRware,as set forth in the following IimRed -
warranty. AUTHOR warraMS for a period of 90 days from the date the first item of Sofiwara is
delivered that the Software will perfortn substanttally in the manner specified in the system
specifications forthe Software,provided the Software is fnstafled,lmplemented,and opereted in
accordance with the written instrudions of AUTHOR. (Extended warranty coverige ts available
for an atldRional fee.) ._
2.1 PROVIDED,FiOWEVER,that this warranty shall be nufl,void,and of no effect uniess and until
(1)the SoRware is used solely in conjunction with the compuler equipment,operating system, �
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compifer,and interpreter specifled in the software documentation,(2)all fees and other charges -
currently due regarding the Software have been paid in full by CUSTOMER, (3)CUSTOMER ��;,
advlses ECS in miting of any and all claimed nonconfortnilies within ten(10)days of becoming �.
aware of such nonconformities,and(4)CUSTOMER has installed ail corredions and '
enhancements for the Software issued by AUTHOR, ,:�'. .
2.2 PROVIDED FURTNER that AUTHOR is able to reproduce any claimed nonconfortnity irt the
Software an computer equipment at AUTHOR's site.
2.3 PROVIDED FURTHER that modificaiion of the Software made or added by parties other lhan
AUTHOR shall not be warranted by AUTNOR. Corred operation of the Software with ail such
modificatiorts removed shall oonstitute proof that the Software operates tn conformity with tbe � r
warranty. "
2.4 AUTHOR's only obligation or Iia6ility with resped to the Software,whether based on contract. •
tort,or othenvise,shalt be to provide to CUSTOhAER,corrections to the Software via written or
magnetic media so that the Software will perfortn substantially as specified in the systems
specificatio�s for such Software. CUSTOMER shall look to ECS for tedistribution of such
corrections.CUSTOMER's rights to receive such corrediens from ECS shall be contingent on
CUSTOMER satisfying its payment and other obligations to ECS. AUTHOR may issue
corrections as amendments to existing reieases of the Software or may incorporate the
correcttons into new releases. AUTHOR shall have no obligation to provide corrections for �
releases other than the most current. AUTHOR's only obligation in the event a coiredion is �
itself in error is to issue a revised correction. New releases will be substantially compatible with
earlier releases.
- 2.5 Watranty coverdge does not include the cost of inedia used to transmit corrections,copies of
documentation incorporating coRedions,installation of correcGons,or data conversion worlc
made necessary by cortections.
2.8 In no even!shall AUTHOR be liable for any direct,incidental,indirect,special,or consequential � .�
damages of any nature whatsoever.
� ,
2.7 CAUTION: THE WARRANTIES,OBLfGATIONS,AND�tABILITIES OF AUTHOR AND THE '
� RIGHTS ANO REMEDfES OF CUSTOMEfZ SPECIFICALLY SET FORTH IN THIS �
AGREEMENT ARE EXCLUSIVE,AND CIJSTOMER HEREBY WAIVES AND RELEASES ALL �
OTHER WARRANTIES,OBLIGATIONS,AND LIABILITIES OF AUTHOR AND RIGHTS,
CLAIMS,AND REMEDIES OF CUSTOMER AGAINST AUTHOR,ITS OWNERS,OFFICERS, !
OR EMPLOYEES,EXPRESS OR IMPLIED,ARISING BY LAW OR OTHERWISE,WITH
RESPECT TO ANYAND ALL SOFTWARE OR OTHER TANGIBl.E OR INTANGIBLE ITEMS
" OR SERVICES PRqVIDED UNDER 7HIS AGREEMENT.INCLUDING BUT NOT LIMITED TO '
(�ANY(MPL(ED WAftRANTY OF MERCHANTABiLITY OR FCMESS FOR AURPOSE, (i�
ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,COURSE OF
DEALING, OR USAGE OF TRADE,AND(i�ANY OBLIGATION,LfABILITY,RiGHT,CLAIM,
OR REMEDY,WHETHER IN TORT,CONTRACT,OR OTHERWISE,AND WHETHER FOR
DIRECT,INCIDENTAL,INDIRECT,SPECIAL,OR CONSEQUENTIAL DAMAGES(INCLUDING
BlIT NOT LIMlTED TO LOSS OF USE,REVENUE,PROFIT,OR DATA).
3. AUTHOR does not warrant the Software against fautty pertortnance due to(1)failure of
operating systems,compilers,interpreters,ulilities,or other soflware not supplied by AUTHOR, �
to pertortn according to their respedive specifications,or(2)damage to any software or data
caused by any software nat supplied by AUTHOR.
4. AUTFlOR shall not be liable for nor deemed to be in default due to any delay or failure to
perfortn its obligations under this Agreement if due to any cause or condition which is caused by , -_
CUSi'OMER or which is beyond the reasonable co�trol of AUTHOR. • � �'
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C. PROPRIETARY RIGHTS: ', ,,
1. CUSTOMER acknowledges that each item of Software is the valuabte trade secret property of •��
ECS or the AUTHOR of sucfi iiem,and that all Sofiware bearing a copyrigbt notice is,in ` ;
addition,subjed to the copyright laws. The partles agree that the use of a copyright notice an �
the Software sha0 not 6e taken to irtdicate that the Soflware has been published. CUSTOMER
does not acquire title to the Software under this Agreement. Aspects of the SoHware that are
trade secrets include but are nat limited to the series of irtstrudions or stafemenfs which
comprise the computer programs,the systems design,modular program strudure,system logic ; '?
flow,file content,video and report formats,coding technique and routines,fle handling and
special search techniques,implementation of fundion keys,video screen and date handling,and ` ?'"
report generation.
2. Except as provided in the following sentence,CUSTOMER will not copy orduplicate any version . �
of the Software,whether physicai,magnetic,or otherwise. CUSTOMER may copy the compuler
software but not the software documentation,at its awn expertse,for the purpose of providing
back-up copies,provided that CUSTOMER(1)includes in and on each partial or complete copy ,
all notices of copyright and proprietary rights appearing in and on the Software,(2)makes only
that number of copies reasonably required,{3)establishes a procedure fo�accounting for each
such copy at all times,and(4)destroys each such copy when it is no longer required.
i�
3. Except for disclosures ta its employees and dlsclosures treated in the following paragraph, �"
CUSTOMER shall not disc{ose or transfer any poRion of the Software or software developed with
or from the Software,whether in physical,magnetic,or any other form,ta any person or `
organizatian. CUSTOMER shall use reasonable ptecautions(1)ta ensure that CUSTOMER and
� its employees do not make unauthorized disclosures or transfers of the Software and(2)to
prevent any unauthorized person or organization from possessing,using,viewing,inspecting,
examining,or copy+ng any poRion of the Software at any time. Without IimiGng the generalfty of
the foregoing,CUSTOMER shall periodicaNy inform its employees of CUSTOMER's obl'�gations .
regarding the Saftware. CUSTOMER aqrees to notify any other AUTHOR immediately of the �
possession,use,or knowledge of any portion of the Software by any unaufhorized person or
organization. In each case in which such unauthorized adivity is related to the adi�iYies of �,�
. CUSTOMER,or an employee of CUSTOMER,CUSTOMER agrees to take all steps reasonably
necessary to tertninate such unauthorized adivity and to retrieve any copies of the SoRware
which are in unauthorized hands. Provided,however,CUSTOMER shall not be required to
expend sums in such aclivity in excess of$2500. In any legal praceeding initiated by
CUSTOMER in conrtection with such activities,ECS or any other AUTHOR may assume the
prosecution of such proceeding,if such party,in its sole discretion,deems that its interests so
, �equire. CUS70N{ER wiil promptiy fumish ECS or any other AUTHOR full deiails of any
unauthorized possession,use,or knowledge of the Sofiware,and will assist in preverding the
recurrence'of such possession,use,or knowledge.The provisions of this paragraph shali not
limit in any way the rights of ECS or any other AUTHOR to recover damages or obtain oYher
relief against CUSTOMER for its negligent or intentional hartn to the rights of ECS or any other
AUTHOR,or for breach of contrdctual rights. CUSTOMER shall keep each and every item
comprising the Saftware free artd clear oi all Ga1ms,liens,and encumbrances except those of
ECS and each AUTHOR,and any ad of CUSTOMER,voluntary or involuntary,purporting to
create a Gaim,lien,or encumbrance on such an item shaU be void. However,the right to use ,
the Software under this sublicense may be used to secure the cost of the sublicense as follows:
CUSTOMER may give the person flnancing such cost the right to have this sublicense asstgqed
to himself or to a third party,subject ta the provisions of the section entitfed"Assignment of
Sublicertse,"below. CUSTOMER shall keep atl Software in a secure place,under access and
use restrictions no less strict than those applied to CUSTOMER's mosl valuable programs or
other proprietery infortnation.
4. CUSTOMER may disGose the Software to an independent contractor re2atned by CUSTOMER -
in connedfon with its use of ihe SoRware,provided that such independent contractor has,prior to i
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such disclosure,executed a written agreement acknowledging that each item of Software is the '
valuable trade secret propeRy of the AUTHOR and promising to use the Software only for the : �
purposes specitied 6y CUSTOMER,to abide by all of the restricNons regarding ihe SoRware 1•
which are set out in this Sedion C,and to retum all copies af the Soitware to CUSTOMER �
immediately when the contractor's engagement with CUSTOMER has ended. The CUSTOMER �,.�'•..
shall prohibit pubi(cation of any results of benchmark tests pertortned by CUSTOMER of an
independent corrtractor. CUSTOMER shalf prohibit any use whatever of the Software outside of
the United States. CUSTOMER shall retain all such executed agreements in its pertnanent
business records and shall provide copies to ECS or AUTHOR upon the request of such party. _
5. In order to help p2serve the confidentiality of the Soflware,ECS has or may in the future �::7.� :
provfde(�scrambled or protected code or only object code tor ceAain portions of the Software,
or(ii)implement other security measures regarding the Soitware.CUSTOMER agrees not to
unscramb(e,decode,disassemble,or decompile such items,norto ci�umvent such security �
measures for any purpose whatsoever. �
6. In the event CUSTOMER attempts to use,copy,disclose or transfer the Software or any
modification the2of in a manner conirary to ihe tertns of this Agreement or in derogation of the
rights of ECS or any other AUTNOR,whether lhose rights are explicitly stated,determined by
law,or othenvise,ECS and each AUTHOR or any of them shall have the right,in additfon to any
other remedies availabte,to injunccive relief enjoining such ads,it being acknowledged that
other remedies are inadequate, jJ.
�.
7. In the event of tertnination or expiration of this Agreement,the sublicense rights granted to
CUSTOMER shall immediately tertninate,and CUSTOMER shall immediately retum, �
unencumbered,all existing coples of the Sofiware to ECS and certify to ECS that all copies or
partial copies of the SoRware have been retumed or destroyed. i
8. In the event of tertnination or expiration of this Agreement,all rights and the sublicense grented �
to CUSTOMER hereunder,shali forthwith tertninate with respect to CUSTOMER. CUSTOMER � .
may not thereafter in any manner avail itself of the rights granted in this Agreemerrt. (..;�
9. THE OBUGATIONS AND REMEDIES OF THE PARTIES REGARDING PROPRIETARY
� RIGHTS WHICH ARE SET FORTH IN THIS AGREEMENT SHALL SURVIVE TERMINATION
OR EXPIRATION OF THIS AGREEMENT.
D. SCOPE AND TERM OF L(CENSE; LOAN PRiOR TO TERM:
1. The subticense rights to use the Software grantetl to CUSTOMER are non-exclusive and are
. subject to the terms of this Agreement: Such use is limited to a maximum number of runtime
users and to the preparation of data and reports for CUSTOMER and for other affiliated `
organizatlons,provided that the processing is done by CUSTOMER's personnel on
CUSTOMER's computers or temporary substitute computers. The Software may not be used by
thtrtf parties,nor may CIJSTOMER use the Software to process data for thirtl parties,eucept as
may be specifically provided by the tertns of this Agreement.CUSTOMER may treat a corporate
subsldfary of CUSTOMER(a corporation in which CUSTOMER has an ownership irtterest)as the
CUSTOMER,thus allowing such subsidiary to use the Soflware,subject to the tertns of this
agreemeM,provided that ptlor to releasa of the Soflware to the subsidiary,the subsidiary binds '
itself in writJng to undertake the same obligatlons as CUSTOMER under this Agreement and
CUSTOMER guarantees such subsidiary's perfortnance,in writing,for the benefit of ECS and �
each AUTHOR.
2. The tertn af the sub(icense shafl begin when a copy of the Software showing CUSTOMER as the '
registered end user is delivered to CUSTOMER. ECS wiil deliver CUSTOMER'S registered copy
foliowing receipt of all Ifcense fees relating to the Soflware. The tertn of the sublicense is _
peipetual,subject to tertnination for material breach of this Agreement. ; i
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3, Prior to the term of this sublfcense,ECS may loan its copy of the Software to CUSTOMER for a `�-. . r
temporary period. During the period of ihe loan,the loaned copy shall be subJed!o all the ,
provisions of this sublicense. THE LOANED COPY IS DESIGNEO TO CEASE OPERATING ti,
SIXTY DAYS AFTER INSTALLAT(ON. •
, .�,
E. SYSTEM REGISTRATION AND THE I�ENTIFICATION SCREEN: ECS requires that each end user �.
of tAe Software be regislered wiih ECS. To ensure that its installation is properiy registered,
CUSTOMER should complete the System Registration fortn enciosed with the software documentation,
and mail it to ECS. Each time operation of the Sofhvare is ir�itiated,the Sofiware will dlsplay an
iderrtification soreee showing the name of the registered end user. The identificatfon screen is also
designed to provide notice to atl users of the SoKware thal ECS and each AUTHOR own the Software,
so as to assist CUSTOMER in meeting its duties to hold the Software in confidence. �'�
F. CORRECTIONS AND ENHANCEMENTS: From time to time,AUTHOR may make available to . -
CUSTOMER coReclions and enhancements to the version of the Software designed to Improve the .
perfortnance of,or add capabilities!o,an existing application version of the SoHware. CUSTOMER shall �
look to ECS for redistribution of such items. Such items are provided free of charge during the wama�y
period,but CUSTOMER shall bear the cost of inedfa used to transmit the items,copies of documenfation ,
fncorporating the items,installation of the items,and data conversion work made necessary by the
items. AUTHOR may.issue such items as amendments to existing reieases of the Software or may
incorporate the items into new releases. New releases will be substantiaily compatible with earlier
releases.
G. NEW VERSIONS OF THE SOFTWARE: From time to time,AUTHOR may make available ta
customer a new version of the SoRware application. This Software will genera!!y lnclude design changes
from previous versions,and may require tlifferent equipment configurations. Customers wiil be granted
- a discount,based upon their sublicense of the older versian of the soflware,should they desire to
purchase a sublicense to the new version.
H. ASSlGNMENT OF SUBLICENSE:
�
1. In the event CUSTOMER w+shes to asslgr�its sublice�se to use the Software,CUSTOMER shall: °��
(1)Obtain the assignee's written agreement to adhere to all of the tertns and condiGons of this
Agreement. (2)Execute a swom affidavit certifying that all copies of the Software in fts
- . possession or control have been delivered to the assignee or destroyed. (3)Submit the a�davit,
the assignee's agreemeM,and the name and address of the assignee to ECS.
2. In no event will the CUSTOMER attempt to transfer any of the software for use outside the
United States. "
' I. MISCELLANEOUS:
1. ECS or any other AUTHOR may at any time,without notice,modify the Software or imptement a
new release of the Soflware as reasonably necessary to provide 8dditional software security.
CUSTOMER agrees to install such modified Software or new release promptly after receipt.
2 In recognition of the exhaordinary confidentfal nature of the Software,in no eveM shall the
Software 6e subjed to any tevy,executfon,attachment,gamishmer�i,or seizure of any kind by .
any credHOr,receiver,trustee in bankivptcy,or any other person,party,executor,successor,or
assignee.
3. This Agreement shall be govemed by and interpreted pursuant to the laws of the state,if any,
specified elsewhere in this Agreement,provided that to the extent this Agreement or any aclion ,. '
under it may affed ECS's interests,it shali be govemed by and interpreted pursuant to the laws
of the State of Colorado. Any action under this Agreement which may affed ECS's iMerests
may be brought in Eagle County,Colorado,and CUSTOMER hereby consents to the jurisdidion i -
Page 13 �
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ot the state and federal courts for such county. CUSTOMER consents to service of process and ``��'����
,..
all other legal documents if seM by Un(ted 5tates Postal Service certified mail to CUSTOMER.
In the eveM CUSTOMER,ECS w any otherAUTHOR retains legal counsel to enforce any of the ��
provisiorts of this Agreement,the party against whom judgment is rendered agrees to pay aU . i�
reasonabie cosfs,attomey's fees,and escpenses.Including but not limited to casts,fees,and
expenses of colleeting such judgment. �; +,��,
The above Soflware Sublicense Addendum must be executed 6y the intended end user of the soffware
tCUSTOMER). UVhen the subllcense agreemeM togetherwith this addendum are submitted to ECS, �
ECS will prepare regtstered soRware for the CUSTOMER.
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CUSTOMER: Eagle Computer Systems,Inc. ;
e Colorado corporatton
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j Title: �.�.c. s✓eo- +�.�t- Title: �`�-s��.�1�---� �
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� Date: /�— a3—9�O Date: /o,,�',�7 6 -
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SYSTEM SUPPORT AGREEMENT �
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The parties io this agreement are:Eagle Computer Systems,lnc.,a Colorado Corporation,("ECS'�and y`��, +,,.
Pitkin County,Colorado Treasurer's Office("Custome�. �
ECS hereby agrees to provide and Customer hereby agrees to obtain services as set foRh in the
following attachments: ��
J:..��-
[X] Software Support Addendum ��::Y.�''.
[ j Hardware Maintenance Addertdum
� � I�
The cost of these services is$566.00 per month, plus any additional charges incurred as specified � •
herein,payable within thirty days of sending invoice to Customer's last known address.
This Agreement shall be in effect from , 19_,, to .
19_ Either paRy may terminate this AgreemeM,with or without cause, upon thirty(30)days'prior
w�tten notice to the oiher party. Unless this Agreement is tertninated prior to expiration of the tertn,this �
Agreement and all rehewais hereof shati be automaticaiiy renewed for additiortal fwelve month periods
unless one party gives to the other notice of its intention to tertninate at least thfrty days prior to the �.i,
expiration of the term hereof or of any renewal period,provided Customer has not materialty breached
the provisions af th(s agreement, and {2) ECS has not sold or assigned its proprietary rights to the
products or this Agreement to a third party. The renewai(s)shall be under such tertns,condifions and �
. price changes as ECS 1n its sole discretion shall specify in writing to the Customer prior to the expiration
of the tertn hereof or of any renewal period, and in the absence of any written specification, the {
renewal(s}shalt be upon the same terms and conditions as set forth in the Agreement. +
THIS AGREEMENT IS THE EXCLUSIV�STATEMENT OF THE ENTIRE AGREEMEMT BETWEEN �
THE PARTIES, AND SUPERSEDES ANY PRIOR ORAL OR WRITTEN REPRESENTATIONS OR ;;�
AGREEMENTS BETWEEN THE PARTIES CONCERNING 7HE SUBJECT MATTER OF THtS
AGREEMEN'f. THERE ARE NO WARRANTIES FROM ECS TO CUSTOMER EXCEPT ANY WHICH
� MAY BE SPECIFIED IN tHIS AGREEMENT OR IN OTHER WRITINGS EXECUTED BY ECS.
EXCEPT FOR ANY SUCH WRITTEN WARRANTIES, THERE ARE NO WARRANTIES BY ECS OF
MERCHANTABILI'fY OF THE SUSJECTS OF THIS AGREEMENT, OR OF FITNESS OF THE
SUBJECTS OF THIS AGREEMENT. THERE ARE NO WARRANTIES CONCERNING THE
SUBJECTS OF THlS AGREEMENT WHICH EXTEND BEYOND 7HE DESCRIPTION ON THE FACE
HEREOF. ANY AMENDMENTS,ADDENDA,ALTERATIONS OR MODIFICATIONS TO THE TERMS
' OR CONDITfONS OF THIS AGREEMENT SHALL BE fN WR171NG AND SIGNED HY 80TH �
PARTIES. THIS AGREEMENT HAS BEEN READ IN ITS ENTIRETY AND EXECUTED BY
AUTHORIZED REPRESENTATNES OF THE PARTIES HERETO.
CUSTOMER: �.� EAGLE COMPUTER SYSTEMS
gy; �Gs�G (/Kl�►-t By: .
Print Name: � �'�n David L.Kunkel,President
Date:
�a/9/9� Date: �
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TERMS AND CONDITIONS '
ti.
A. PAYMENT TERMS: ECS wili invofce Customer at the beginning of each calendar month for ihat �
month's standard charges,plus al!addi8onal fees and charges accrued,and all reimbursaWe expenses �'. '•
incurted,during the previous month. If the Customer faits to pay any charges when due and payable, �
Customer agrees that ECS shali have the right to tnvoice and Customer witl pay ati costs, includirrg
reasonable attomey fees expended in collecting overdue charges and a late payment charge of 1.5%per
month but not in excess of the lawful maximum on the unpaid balance.
B. CONFIDENTfALIN: ECS acknowledges that during discussions with Customer leading up to this �-
Agreement and during its perfortnance, certain propriefary or confidential data of Customer may be
disclosed to ECS or to ECS's employees or agents. ECS agrees that all data not nortnally availa6le
through other sources may be proprietary,and will be safeguarded by ECS with the same degree of care -
that it accords to ECS's own proprietary data. In particular. a) ECS or any of ECS's employees or -
agents shall not divul9e, transfer, assign, seil, license, franchise, sublease or othervvise convey the
identified Customer proprietary data in any form to a thipd paRy,person or organizaUon except as may
be specificaliy agreed to in writing by Cuslomer,and,b)in the event ECS shail attempt to use or convey
any portion of the identified Customer proprietary data in a manner contrary to the tertns of this
Agreement,Cuslomer shall have the right,in additian to any other remedies available to it,to injunctive
relief enjoining such accs,it being acknowledged that other remedies alone may be inadequate.
C.WORKiNG SPACE: Customer agrees to give ECS sufficient working space and ttme and access to
the computer system during normal business hours so that ECS may install and maintain the soflware
and train Customer personnel.
" D.RISK OF LOSS: Customer shall be responsible for protecting its system from risk of loss,damage or
destrudion. tn the eveM of such toss,damage or destruction,the item of the system so lost,damaged or
destroyed may be replaced at the expense of Customer.
E. LIABILITY: ECS shall not be iiable for any loss, damage or claim resulting fmm these services, �
regartiless of the form of action,except for loss or damage caused by the negligence of ECS. In no
eveM snaU ECS be liable for. (1)any spedal, indired, incidental, or consequentiat damage; (2) any
_ damages resulting from loss of use,data or profits;(3)any daim,whether in contrad or tort,that arose
� more than one year prior to ihe institution of suit thereon; or(4)damages incurred which exceed the
annual fee chaiged by ECS for the services giving rise to the cause of aCtion. Customer agrees to
indemnify and hold ECS hartniess,and ECS agrees to indemnify and hold Customer hartnless,from any
loss, claim, or damage to persons or property arising out of this Agreement or Customer's use or
possession of the Produccs and services;provided that such toss,claim or damage was not caused by
the fault of ECS. This indemnification will survive the termination of this Agreement. '
F.TERMINATION: !n addition to any other remedies ECS may have pursuant to this Agreement,at law
or in equity,ECS may also tertninate this Agreement upon any of the following ocCUrrences:
1. Customer is in defautt of its payment obligattons and such default cor�tinues far a period of ten
(10)days following receipt of written noUce from ECS,or if Customer is in defauR of any other
obligation hereunder and such default continues for thiRy(30}days following recefpt of written
notice.
2. Customer attempts to assign this Agreement or any of its rights hereunder without at leest 30 day •
prior milien notice io ECS.
3..Customer is not paying ils debts as such debts become due,becomes insolvent,files or has filed
against ft a petition of any chapter of the U.S.Bankruptcy code.
Tertnination of this Agreement shall not affect Customers pre-tertnination obligations and any such
tertnination is without prejudice to the enforcemen!of any undischarged obligatiorts existing at the time
of tertnination.
G.MISC�LLANEOUS: �
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1. ASSIGNMENT: This agreement is assignable by either party,provided at least 30 day written ��;�: -�,,
notice is given to the other party. :',.,.�.;
2. NOTICE: All notices which Customer or ECS may have cause to gtve to the other shall be '
deitvered in miting,effective as of the time of sending,artd effedfve if sent to the last known ''�.' •: +. .
address of the party to whom it Is direded. �
3. APPUCABLE LAW: This agreement shall be govemed by the taws of the State of Colorado. �:�`:
4. SE1/ERABILITY:IF any provision ot this agreement is held to be void or unenforceable by the
courts in connedion with litigation over this contrect,the validity of the remaining provisions shall `��.
not be affeded and the righis and obligations of the parties sfiall be construed and enforced as if �'�`
the contrad did not contain the padicular provision held to be void or unenforceable. ..:::.Y.�`�:
5. LEGAL EXPEIVSES: if there is legal action conceming the subjed matter of thls agreement the �
prevailing party of this agreement shall be entftled to recover its reasonable attomey's fees and .��`
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other litigation expenses, such as those tor discovery proceedings, and employee expenses -
arising from pursuit of such legal action. If eflher party to this agreement prevails only in part, ?�'� .
then it shall be entitled to recover that part of its litigation expenses as fhe court may deem just. t:
&. ARBlTRATION:Arry controversy, dispute or question arising out of, in connection with, or in ;'`
relation to this Agreement or tis interpretation,pertormance,or non-perfortnance,or any breach
thereof may, at the option of either party be delertnined by arbitration in accordance wAh the
tules of the American Arbitration Association. The costs and expenses of such arbitration,
including the•compensation of the arbitrators and ihe stenographer emptoyed by them,shall be
paid by the paRy against whom the arbitrator renders a decision. The decision of the arbitrator .,�`�
shatl be final and binding upon the parties hereto and may be eMered as a ftnal decree of � �
judgment in any court of competent jurisdictfon. After the making of the award,which may
include an award of damages,by the arbitrator as herein provided,either of the parties to this ��.�
. agreement shall have the right to commenae an adion in any court of r.ompeterrt jurisdiction to
enforce the award rendered hereunder. The party against whom judgment is rendered agrees to
pay reasonabfe aftomey fees and costs,as wett as any other damages sought. '
7. AMENDMENT: This agreement may only be amended by a writing which is executed by ail a
partfes hereto. ��
8. COMMERCIAL PURPOSE: Customer acknowleciges that it is entering into this agreement for a ; ;;�;_
commerciai purpose,and that this is not a consumer transadion. '
9. NO JOlNT VENTURE; Nothing contained in this Agreement shali 6e construed to imply that a �'
- � joint verriure or partnership is created by and between the parties hereto,
10.EXCUSABLE DELAYS: Both parties shalf de excused for delay in the performance of any
obiigations hereunder when such delay is the result of or ariributable to the elements,acts of
God, govemmental authority, delays in Vansportation or any other cause beyond their �-�
reasonable coMrol.
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SOFTWARE SUPPORT ADDENDUM 1•
TO SYSTEM SUPPORT AGREEMENT -
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During the Agreement term, ECS shaN provide the folbwiog Standartl Monthly Cbarge:
services in support of the Software, during Normal Working 3566.00
Hours, for the standard monthiy charge, plus any addittonal
chart,�es(ncurred.
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ECS shall maintain a telephone and modem support center that [ ] Charged per tha current ECS
aUOws Customer to report system problems and seek Time and Expenses schedule. � .
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assistance in use of the supported Software. ECS shal(
maintain a trained staff capable of rendering the services set [Xj Included in standard monthly
forth in lhis Agreement. ECS shall be responsible for using all charge.
reasonable diligence in correeting verifiable and reproducible
• F�mrs when reported to ECS in accordance with ECS's
slandard repo�ting procedures. ECS shall initfate work in a
diligent manner towatti devefopment of an Error Correction.
Foliowing completion of the Error Correction,ECS shall provide
the Error Correction through a "fix" consisting of sufficient
programming and operaling instnictions to implement the Error
Correction.
In the event that ECS is requested by the Custome�to provide [ ] Charged per the current ECS
' programming modifications to existing Soflware,or is requested Time and Expenses Scheduie.
or required to provide services at Customefs facility,Customer
wilt be charged for programming time,on-sRe time, expenses [XJ Reduced Flat Rates charged
i� and travei time per the curreM Time and Expenses Schedule, per the current ECS Time and k
except for any overtiding rates tisted here. Expenses Schedule. �
ECS may, from time to time, issue new Updates of the Charge per Update: $0
- Soflware, containing Error Correctfons, minor Enhancemenis,
and in certain inslances if ECS so elects,major Enhancements.
ECS shall provide Customer with one copy of each new
Update. ECS shall provide reasonable assistance to help
Customer install and operate each new Update.
' ECS may,from time to time,offer major EnhancemeMs to its Discount on ma)or EnhanCements:
customers generally for an additional charge. ECS shalf aliow 20%
Customer to purchase or Itcense each Enhancement for a
percern off the retail list price.
ECS shatl consider and evaluate the development of Enhancements of the specific use of Customer and
shalt respond to Customers requests for addilionai services pertafning to ihe Softwere,provided that •
such assistance,if agreed to be provided,shall be subject to the standard Time and Expenses Schedule.
INITIALS: Customer. � ECS; �A
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TERMS AND CONDITIONS `^
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A.DEFINITIONS: �'�rf, .
1. "Software"refers to each of the computer software pmducts described nereln. Each Soflware
consists of both computer software and soflware documentatfon(e.g., user manuals,tecftnical
manuals, system manuals, keyboard function strips, and like items). AddiUons, correctlons,
updates,and enhancements of a Soitware also fall wilhin the definition of SoRware. "Soflware"
refers both to the irttangible information comprfsiag the products and,as the context requires,
every copy of the infortnation. `�?' �'
2. "Error is any failure of the Software to conform in all materiat respeds to the functional _ •
specifications of the Sotiware. However,any non-confortnity resulting from Customer's mfsuse
or improper use of the Software or combining or merging the Software with any hardware or
: software not supplied by ECS,or not aulhorized to be so combined or merged by ECS,shall not �
be constdered an EROr.
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3. "Ertor Correction"(s either a software modiTication or addition that,when made or added to the
Software, establ(shes materiai confortnity of the Software to the fundional specfflcations,or a
procedure or routine that,whe�observed in the regular operation of the SoffwarP,eliminates the �
pradicai adverse effect on Customer of such nonconfortnity, t
4. "Enhancement"refers to any modification or addition that,when made or added to!he Software, _'
materialry changes its utility, efficiency, functional capability, or application,bui that does not
constitute solely an Error Correction. Enhancements may be designated by ECS as minor or
• � major, dependi�g on ECS's assessment of their value and of the fundion added to the
preexisting Software.
5. "Updates" means new versions of the Soflware, which new versions may include both Error '
Corredlons and Enhancements. i�`
B. "Nortnal Workfng Hours"are the hours 6etween 8:00 a.m,and 5:00 p.m., Mountain Time, on
Monday through Friday,excluding regulady scheduled holidays of ECS.
Supported Software
� Product Monthiv Fee
� T1MS+plus Base Module $78.00
; Tax Bi�ing and Colfecfion , 390.OD
�� Dlsbursemenls 98.00
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