HomeMy WebLinkAboutbocc.con.006.2007
CLERK'S CHECK LIST
FOR CONTRACTS SUBMITTED TO CLERK AND RECORDER FOR
SCANNING/ARCHIVING
CONTRACT #: 006-2007
Originating Department/Division: Clerk & Recorder
Contact Person: Janice Vos Caudill
Project Name: recording system
D BOCC AGENDA ITEM
(BOCC signature required)
Phone #: 429-2710
r:gJSTAFF AUTHORIZED SIGNATURE
(per Revised Procurement Code 7/2005)
Check procurement type:
DNone DInformal DFormal r:gJSole Source DEmergency DState Bid 0
Check Contract Tvpe:
Dollar Amount: 67500/35600
maintenance-10000/4500 yr
DServices/Maintenance
DLicense/Use
DLease
DConstruction
DGoods, Equipment, Supplies
DOther (e.g. revenue)
Contractor/Business
Contract Execution
Automatic Renewal
01-10-2007
N
Budget Line Item/Ledger Number 001-10...94072-86000
DEmployment (for county employees)
DIntergovernmental Agreement (Requires BOCC Action)
DNon-Profit
DQuasi-Public
DGrant Agreements (Requires BOCC Action)
DChange Order/Contract Amendment
Complete Name: Aptitude Solutions, Inc.
Contract End Date: NA
Term of Contract: 3 yr increments
All Contracts should be proofed for the following:
DNo Pages Missing
DIf a Page is Left Intentionally Blank -Note on Page
DPage numbered consecutively
DAll Signatures Affixed
DAll Dates Filled In
DAll Other Blanks Filled In
DAll Exhibits Attached
DAll Legal Descriptions Attached (if appropriate)
DNotice of Award/Proceed Attached (if appropriate)
DSpecial Instructions for Finance Department:
DSent to Clerk and Recorder for Scanning/Archiving
DAuthorized Staff Person's Name:
BY CHECKING ABOVE AND ENTERING NAME, THE AUTHORIZED STAFF
PERSON INDICATES THAT DOCUMENT HAS BEEN PROOFED AND READY
FOR SCANNING.
CONTRACT
FOR THE PURCHASE OF GOODS
Rev. 2/13/06dq
Contract #OU/-/t1- "1YO~;J-!fb{Jo{J -/~;;3(11 , I Fe ~
3:5/ S'if ;l/(1!Pr'oLu;( T41<i( JC"-P A.
Budget line item # /
THIS CONTRACT is made and entered into thisL day of
County, Board of County Commissioners, 530 E. Main Street, Thir
"Buyer") and Aptitude Solutions, Inc., 497 State Road 436, Suite
"Vendor").
, 20~by and between Pitkin
loor, en, Colorado 81611 (hereinafter
7, Casselberry, Florida 32707 (hereinafter
1. GOODS PURCHASED. Vendor shall provide Buyer the following goods and services conforming
to the stated description and any Technical Specifications in accordance with the license and maintenance
agreements to be executed by Vendor and Buyer and attached and incorporated hereto as Addenda A and
B. For purposes of this Agreement, "goods" shall mean Vendor's proprietary software and the associated
license.
2. DELIVERY OF GOODS. Goods, together with all warranties, guarantees, manuals, support
information and notice of any extended warranties, shall be delivered by Vendor to the Buyer at the following
place and time:
Place: 530 E. Main Street, Third Floor, Aspen, Colorado 81611
Date and Time:
agreed upon implementation schedule.
The delivery of software shall be in accordance with a mutually
3. RISK OF LOSS. At all times prior to delivery and Buyer's acceptance of the goods, Vendor
shall bear any and all risk of loss of or damage to the goods. During such period, Vendor shall insure the goods for
loss or damage in amounts and under appropriate terms.
4.
goods.
TIME IS OF THE ESSENCE. Vendor acknowledges that time is of the essence for delivery of
5. ACCEPTANCE OF GOODS. Delivery of goods shall be complete only upon acceptance by Buyer.
Buyer shall have the time indicated in Section 4 of Addendum A for inspection of goods. The goods shall be
delivered to Buyer free and clear of any liens, claims or encumbrances, and Vendor shall warrant the same, which
warranty shall survive closing ofthis contract.
6. REJECTION OF GOODS. If goods are not delivered according to the specifications and
' descriptions of this contract, Buyer may reject goods. Vendor shall have the time indicated in Section 4 of
!
Addendum A to deliver goods in conformance with this contract. Upon failure of Vendor to deliver goods, Buyer
may terminate this contract or declare Vendor to be in default and pursue remedies contained in this contract.
7 WARRANTY/REPAIRS:
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A. Delivery of Warranty. Upon delivery of the goods, Vendor shall simultaneously tender to
Buyer all warranties, guarantees, manuals and other documents specified by the contract documents or in
possession of Vendor.
B. Terms of Warrantv and Repair. The Vendor hereby warrants that for a period of 90 days
after goods are accepted, Vendor will, at Vendor's own expense, without any cost to the Buyer, replace all
defective parts and make any repairs to the goods that may be required or made necessary by reason of
defective material or workmanship. Where practicable, warranty repairs are to be made in the field;
however, in the event of major repairs, the goods may be transported to Vendor's facility at no cost to the
Buyer.
C. Extended Warranties. Except as expressly stated in Addendum B, in addition to the above,
the Buyer may avail itself of the Vendor's standard and/or extended warranties. The Vendor shall offer to
the Buyer any extended warranties, which may be available from the manufacturer at the time of delivery,
or any subsequent extended warranties, for which the Buyer may be eligible, which become available
thereafter. The Buyer is under no obligation to accept and pay for these extended warranties however.
8. PAYMENT. Full payment shall occur 30% upon contract signing, 70% upon software acceptance
of goods delivered in compliance with this contract. In consideration of delivery and acceptance of the goods to
Buyer in accordance with this contract, Buyer shall pay Vendor, and Vendor agrees to accept as its full and only
compensation, the stated sum of 67500.00 Ius 10000 annual maintenance with first ear a ment due 90 da s
following software acceptance, and travel expenses incurred during installation and training billable as incurred but
any payment by the Buyer may be offset by any amount the Vendor owes the Buyer for any reason.
9. TERMINATION PRIOR TO EXPIRATION OF CONTRACT TERM. Buyer has the right to
terminate this contract, with or without cause, by giving written notice to the Vendor of such termination and
specifying the effective date thereof.
10. BUYER'S REMEDIES UPON DEFAULT OF VENDOR. Whenever Vendor shall default in
performance of this contract in accordance with its terms, Buyer shall be entitled to suit for damages, specific
performance or other relief in law or equity.
11 ASSIGNABLlLlTY. This contract is not assignable by either party. Any use of subcontractors by
the Vendor for material performance of this contract must be accepted in writing by the Buyer.
12. BINDING ARBITRATION. Any disputes arising out of this contract shall be subject to binding
arbitration. The parties agree that any disputes concerning the terms and conditions of this contract shall be
submitted and finally settled by arbitration. Arbitration shall be conducted pursuant to the rules of the American
Arbitration Association and shall be presided over by the Pitkin County Hearing Officer appointed to arbitrate
Pitkin County contract disputes. Costs of the arbitration shall be awarded to the substantially prevailing party.
13. SEVERABILITY. In the event that any provision of this contract shall be held to be invalid or
unenforceable, the remaining provisions of this contract shall remain valid and binding upon the parties hereto
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14. INTEGRATION AND MODIFICATION. This contract represents the entire and integrated contract
between the Buyer and Vendor and supersedes all prior negotiations, representations, or contract, either written or oral.
This contract may be amended only by written contract signed by both the Buyer and Vendor.
15. EXEMPTIONS. All purchases of construction or building or any other materials for this contract
shall not include Federal Excise Taxes or Colorado State or local sales or use taxes. Pitkin County is exempt from
such taxes underregistration numbers 98-02624 and 84-78000-5K.
16. CONTRACT MADE IN COLORADO. The parties agree that this contract was made in accordance
with the laws ofthe State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of
Pitkin County, Colorado.
17. ATTORNEY'S FEES. In the event that legal action is necessary to enforce any of the provisions of
this contract beyond the arbitration described in Paragraph 13, the substantially prevailing party shall be entitled to its
costs and reasonable attomey's fees.
18. GOVERNMENTAL IMMUNITY. Vendor agrees and understands that Buyer is relying on and
does not waive, by any provision of this contract, the monetary limitations or terms (presently $150,000.00 per
person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado
Governmental Immunity Act, 24-10-101, et. Seq., C.R.S., as from time to time amended, or otherwise available to
Buyer or any of its officers, agents or employees. Further, nothing in this contract shall be construed or interpreted to
require or provide for indemnification of the Vendor by the Buyer for any injury to any person or any property damage
whatsoever which is caused by the negligence or other misconduct of the Buyer or its agent or employees.
19. CURRENT YEAR OBLIGATIONS. The parties acknowledge and agree that any payments
provided for hereunder or requirements for future appropriations shall constitute only currently budgeted
expenditures of Pitkin County as Buyer. Pitkin County's obligations under this contract are subject to Pitkin
County's annual right to budget and appropriate the sums necessary to provide the services set forth herein. No
provisions of the contract shall constitute a mandatory charge or requirement in any ensuing fiscal year beyond the
then current fiscal year of Pitkin County. No provision of the contract shall be construed or interpreted as creating
a multiple-fiscal year direct or indirect debt or other financial obligation of Pitkin County within the meaning of
any constitutional or statutory debt limitation. This contract shall not directly or indirectly obligate Pitkin County
to make any payments beyond those appropriated for Pitkin County's then current fiscal year. No provisions of
iliis contract shall be construed to pledge or create a lien on any class or source of Pitkin County's moneys, nor
shall any provision of this contract restrict the future issuance of Pitkin County's bonds or any obligations payable
from any class or source of Pitkin County's money.
20. NOTICE. Any written notice required by this contract shall be deemed delivered through any of the
following: (J) hand delivery to the person at the address below; (2) delivery by facsimile with confirmation of
receipt to the fax number below; or (3) within three (3) days of being sent certified first class mail, postage
prepaid, return receipt requested addressed as follows:
y
A. To Pitkin County
Procurement Officer
Address
Fax
with copies to:
Pitkin County Attorney's Office
530 E. Main Street, #302
Aspen, Colorado 81611
Fax: (970) 920-5198
B. To Vendor:
Aptitude Solutions, Inc
497 SR 436, Suite 177
Casselberry, FL 32707
Fax: 407-260-2315
21 ORDER OF PRECEDENCE. This Contract consistes of the documents listed below and references
to Contract, Contract Documents, or Agreement includes all such documents. In the event that any provision of
one contract Doucment conflicts with te provision of another, the provision in the Contract Document listed first
elwo shall govern, except as otherwise specifically stated.
A. This Contract for the Purchase of Goods.
B. Addendum A, along with attachments thereto (Exhibit 1).
C. Addendum B, along with attachments thereto (Exhibit 2 & 3).
IN WITNESS WHEREOF, the parties have executed this contract as of the date first set out herein above.
Paul S. Miller
Executive Vice President
2bf71 By:
By:
~~h?( ~~
llil., F~:';"!fJ.. ~1:::::
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ADDENDUM A
SOFTWARE LICENSE AGREEMENT
between
APTITUDE SOLUTIONS, INC.
("Aptitude")
a Florida corporation
having its principle place of business at:
497 State Road 436, Suite 177
Casselberry, Florida 32707
Facsimile: 407-260-2315
and
PITKIN COUNTY, COLORADO
CLERK AND RECORDER
("Licensee")
having its principle address at:
530 East Main Street
Aspen, CO 81611-1948
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(1) Definitions and Identifications. For all purposes of this Agreement, unless the context specifically
indicates otherwise, and in addition to other terms defined only within the internal text of this Agreement, the
terms defined in this Sl shall be applicable:
(a) Agreement - this Agreement, all exhibits thereto, and any and all subsequent duly executed
amendments thereto.
(b) Confidential Information - Copyrights, Trade Secrets, Technical Information, Technology, and any
and all other confidential and/or proprietary information provided by one Person ("Discloser") to another Person
("Recipient") pursuant to this Agreement or otherwise, relating to, among other items, the research, development,
products, processes, business plans, customers, finances, suppliers, and personnel data of or related to the
business of Discloser, including, without limitation, the Software an~ all Documentation. Confidential Information
shall also include all "non-public personal information" as defined in Title V of the Gramm-Leach-Bliley Act (15
U.S. C. Section 6801, et seq.) and the implementing regulations thereunder (collectively, the "GLB Act"), as the
same may be amended from time to time. Confidential Information does not include any information: (1)
Recipient knew before Discloser provided it; (2) which has become publicly known through no wrongful act of
Recipient; (3) which Recipient developed independently, as evidenced by appropriate documentation; or, (4) of
which Recipient becomes aware from any third Person not bound by non-disclosure obligations to Discloser and
with the lawful right to disclose such information to Recipient. Notwithstanding the foregoing, specific information
will not be deemed to be within the foregoing exceptions merely because it is contained within more general
information otherwise subject to such exceptions.
(c) Copyrights - copyrighted and copyrightable materials, whether or not registered, published, or
containing a copyright notice, in any and all media, and further including, without limitation, any and all moral
rights and corresponding rights under international agreements and conventions, all Derivatives thereof, and any
and all applications for registrations, registrations, and/or renewals of any of the foregoing.
(d) Deliverables - those components, milestones, and/or materials, including, without limitation, the
Software, Documentation, Maintenance Modifications, and Enhancements to be completed by one Party and
delivered or otherwise provided to the other Party in accordance with the terms of this Agreement and/or an
effective Maintenance Agreement. Deliverables can mean either Deliverables required from Aptitude ("Aptitude
Deliverables") or Deliverables required from Licensee ("Licensee Deliverables").
(e) Derivatives - any and all adaptations, enhancements, improvements, modifications, revisions, or
translations, whether to Intellectual Property or otherwise.
(f) Documentation - manuals, user guides, and other documentary materials for use with the
Deliverables, including, without limitation, all Derivatives thereof.
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(g) Enhancements - changes or additions, other than Maintenance Modifications, to Software and
related Documentation, including, without limitation, all new releases, that improve functions, add new functions,
or significantly improve performance by changes in system design or coding; provided, however, that
Enhancements do not include any New Product.
(h) Error - (1) any error or defect resulting from an incorrect functioning of Software caused by the
Software's failure to meet Functional Specification therefore; or, (2) any error or defect resulting from an incorrect
or incomplete statement in Documentation caused by the failure of the Software and/or the Documentation to
meet the Functional Specification therefore.
(i) Functional Specifications - the design and/or performance criteria for and qualities of the Software
described as Functional Specifications in the Software Supplement.
U) Intellectual Property - (1) Trade Secrets, (2) Copyrights, (3) Derivatives, (4) Documentation, (5)
Patents, (6) Software, (7) Technical Information, (8) Technology, and (9) any and all proprietary rights relating to
any of the foregoing.
(k) Licensee - the Person executing this Agreement.
(I) Licensee Data - all data of Licensee, whether proprietary or non-proprietary to Licensee,
converted to the System.
(m) Licensee Materials - all Licensee Data and all Derivatives thereof.
(n) Maintenance Agreement - a separate written agreement setting forth the terms and conditions
under which maintenance services for the Software will be provided by Aptitude to Licensee after the expiration of
the Warranty Period.
(0) Maintenance Modification - any modification or revision (except to the extent the same constitutes
an Enhancement or a New Product) to Software or Documentation that corrects Errors, supports new releases of
the operating systems with which the Software is designed to operate, supports new inpuUoutput (I/O) devices, or
provides other incidental updates and corrections.
(p) Material Breach - failure by a Party to perform any requirement, duty, or obligation upon it as
provided for in this Agreement, other than as accepted pursuant to the provisions of &15 (Excusable Delays) of
this Agreement.
(q) New Product - any change or addition to Software and/or related Documentation that: (1) has a
value or utility separate from the use of the Software and Documentation; (2) as a practical matter, may be priced
and offered separately from the Software and Documentation; and, (3) is not made available to Aptitude's
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licensees generally without separate charge. In the event of any disagreement between the Parties with respect
to whether a particular change or addition constitutes a New Product, the good faith determination of such issue
by Aptitude shall be final, binding, and conclusive.
(r) Party - either Aptitude or Licensee, and "Parties" means both of the same.
(s) Patents - all patentable materials, letters patent, and utility models, including, without limitation, all
reissues, continuations, continuations-in-part, renewals, Derivatives, and extensions of any of the foregoing and
all applications therefore (and patents which may issue on all such applications).
(t) Person - an individual, partnership, corporation, association, joint stock company, limited liability
company, trust, joint venture, unincorporated organization, or any governmental agency or authority.
(u) Scope of Services - the written description and specifications for the System, including, without
limitation, the Deliverables and Functional Specifications, and all milestone, delivery, and acceptance schedules,
as described in the Software Supplement.
(v) Software - includes, as applicable, all Aptitude Software and all Third Party Software supplied by
Aptitude pursuant to this Agreement. Software shall include any Maintenance Modification or Enhancement
thereto created by Aptitude from time to time during the Warranty Period of this Agreement and/or thereafter
during the term of any effective Maintenance Agreement. The term "Software" does not include New Products
except to the extent added to the Software by separate agreement of the Parties as to additional fees, terms, and
conditions.
(w) Software Acceptance Date - the date of final acceptance of the System by Licensee as described
in s4(e) of this Agreement.
(x) Software Supplement - the Software Supplement attached hereto as Exhibits 1, 2, and 3.
(y) System - the Software system developed by Aptitude in accordance with the Scope of Services for
use by Licensee and solely in the Territory pursuant to the terms and conditions of this Agreement.
(z) Taxes - all federal, state, local, or foreign income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock,
franchise, profits, withholding, social security (or similar taxes), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other taxes
of any kind, including, without limitation, any interest, penalty, or addition thereto, whether or not disputed.
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(aa) Technical Information - know-how, data, and other technical information including, without
limitation: (1) engineering documentation, such as development records, production software information,
algorithms, flow charts, design information, drawings, specifications, and data sheets; (2) manufacturing
documentation such as manufacturing drawings, instructions, specifications, procedures, methods, standards
documentation, tooling and fixture drawings, process specifications and instructions; and, (3) quality and reliability
documentation such as quality plans, specifications, instructions, procedures, test plans, test records and
regulatory documentation; and further including any and all Intellectual Property therein or relating or referring
thereto.
(ab) Technology - know-how, show-how, procedures, systems, processes, Trade Secrets, inventions
(whether or not patentable and whether or not reduced to practice), algorithms, formulae, research and
development data, manufacturing, development, and production techniques, and all other proprietary information
relating thereto, and further including any and all Intellectual Property therein or relating or referring thereto.
(ac) Territory - the Territory shall mean the offices of the Pitkin County Courthouse (or other location
within Pitkin County, Licensee may designate)
(ad) Test Validation Criteria - the acceptance criteria for the Aptitude Deliverables, including, without
limitation, the Software, set forth in the Scope of Services.
(ae) Third Party Software - software utilized in tandem with the Software, and necessary to enable the
Software to perform the Functional Specifications, supplied either by Aptitude with the Software or by Licensee
independently of Aptitude.
(at) Trade Secrets - shall have the meaning set forth in applicable statutory law, if any, and, if not, as
defined by applicable common law; provided, however, that, where both statutory and common law may be
applicable, the broadest possible definition shall apply.
(ag) Trademarks - trademarks, service marks, logos, trade names, and/or domain names including,
without limitation, any and all common law and/or statutory rights therein and any and all applications to register
and/or registrations therefor, anywhere within or outside of the Territory.
(ah) Warranty Period - the ninety (90) day period commencing on the Software Acceptance Date.
(2) Agreement to License. This Agreement provides for the license of Software by Aptitude to Licensee,
in accordance with the terms and conditions of this Agreement. Aptitude shall license to Licensee and Licensee
shall license from Aptitude, the Software as described on the attached Software Supplement. Licensee may
license additional Software hereunder by execution of a subsequent Software Supplement.
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(3) Fees, Installation Charges, and Taxes.
(a) License Fees. The license fees for the initial items of licensed Software are set forth on the
Software Supplement. Subsequent orders shall be at the fees in effect at the time of receipt by Aptitude of any
applicable subsequent Software Supplement executed by Licensee and Aptitude. Fees resulting from the
provision by Aptitude to Licensee of Third Party Software are passed through by Aptitude to Licensee, and, in that
context, such fees payable by Licensee shall increase, and such increase shall be payable, as and to the extent
of any such fee increases payable by Aptitude.
(b) Installation Fees. Licensee shall also pay for installation of Software at the then prevailing fees,
plus any travel expenses required, including reasonable mileage, air fare, meals, lodging, and similar expenses.
In the event Licensee is a governmental agency or authority, travel expenses shall be limited in amount by
applicable federal or state statutory requirements.
(c) Taxes. Licensee is additionally liable for any applicable federal, state, or local Taxes (exclusive of
income or gross receipts Taxes properly payable by Aptitude) and other fees or assessments incurred as a result
of the license or use of the Software by Licensee.
(4) Delivery and Acceptance.
(a) Delivery. Each Party shall timely perform delivery of its required Deliverables in accordance with
the Scope of Services, including the delivery schedule specified therein. Licensee shall payor reimburse Aptitude
for all costs of shipping Software to Licensee, including freight, insurance, and special packaging charges, if any.
The carrier, method of shipment, and other matters relating to shipment shall be determined by Aptitude.
Licensee is responsible for movement into or within Licensee's premises, site preparation per Aptitude
requirements, and other site expenses required for installation.
(b) Testing. Testing of Aptitude Deliverables shall be completed by Licensee in accordance with the
Test Validation Criteria within fifteen (15) days following initial delivery to Licensee.
(c) Initial Acceptance. Within twenty (20) days following initial delivery to Licensee, Licensee shall
either: (i) accept the Aptitude Deliverables in writing; or, (i1) reject the Aptitude Deliverables and provide Aptitude
with a statement of Errors resulting in operation not in conformance with the Test Validation Criteria. Failure by
Licensee to provide the rejection and statement of errors within the twenty (20) day period provided herein shall
be deemed to be acceptance by Licensee of the Aptitude Deliverables. Aptitude will correct any Error and
redeliver the affected Deliverables to Licensee within thirty (30) days following receipt of the statement of Errors.
Licensee shall, within ten (10) days following such redelivery, retest and accept or reject the redelivered Aptitude
Deliverables in accordance with the procedures set forth herein. Failure by Licensee to provide a statement of
either acceptance or Errors within ten (10) days following redelivery of the Aptitude Deliverables shall be deemed
to be acceptance by Licensee of the Aptitude Deliverables.
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(d) Instal/ation. Within thirty (30) days following acceptance of the Aptitude Deliverables, Aptitude
shall install the System at the Licensee's facilities for final acceptance testing.
(e) Final Acceptance. Within ten (10) days following completion of installation, Licensee shall either:
(i) accept the System in writing; or, (ii) reject the System and provide Aptitude with a statement of Errors resulting
in operation not in conformance with the Test Validation Criteria. Aptitude will correct any Error and redeliver the
System to Licensee within thirty (30) days following receipt of the statement of Errors. Licensee shall, within ten
(10) days following such redelivery, accept or reject the redelivered System in accordance with the procedures set
forth herein. Failure by Licensee to provide a statement of acceptance or Errors within either of the ten (10) day
periods specified herein shall be deemed to be final acceptance by Licensee of the System.
(5) Payment.
(a) Initial Software Supplement. Payment of Software license fees, installation fees, and other fees on
the initial Software Supplement will be made in installments as follows:
(i) Thirty percent (30%) of such license fees, installation fees, and other fees to Aptitude, as
indicated on the initial Aptitude Software Supplement, is due at the time Licensee signs this Agreement.
(ii) Seventy percent (70%) of such license fees, installation fees, and other fees to Aptitude, plus
applicable Taxes and shipping charges, if any, is due upon the Software Acceptance Date.
(iii) Fees for all Third Party Software provided by Aptitude as described in the Software
Supplement shall be payable at least thirty (30) days prior to due date for payment by Aptitude to Aptitude's
provider.
(b) Subsequent Software Supplement. Payment of license fees, installation fees, and other fees to
Aptitude on any subsequent Software Supplement shall be made as specified in such subsequent Software
Supplement.
(c) Ancillary Charges and Out of Pocket Expenses. Notwithstanding 35(a) of this Agreement, all
ancillary charges (e.g., additional training charges) and all out of pocket expenses of Aptitude (e.g., certain travel
expenses) which are payable by Licensee hereunder shall be due and payable within thirty (30) days following
invoice by Aptitude.
(d) Failure of Payment. In the event payment is not made as specified in this Agreement, Licensee
shall pay interest at the rate of one and one-half percent (1.5%) per month (or the highest applicable legal rate,
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whichever is lower) on the outstanding overdue balance for each month or part thereof that such sum is overdue;
provided, however, that if Licensee is a governmental agency or authority subject to a "Prompt Payment" or
similar statutory requirement for the transaction contemplated in this Agreement, such statutory requirement shall
control to the extent the same is inconsistent with the requirements of this 95(d).
(6) Warranty, Exclusions, and Disclaimer.
(a) Software Warranty. Aptitude warrants that the Software delivered hereunder shall conform to the
Functional Specifications set forth in the Software Supplement and will be free of Errors during the Warranty
Period. Aptitude's sole obligation and responsibility to Licensee under the foregoing warranty is to remedy, at no
cost to Licensee, any such Error reported to Aptitude during the Warranty Period. Notwithstanding the foregoing
or any other term or provision of this Agreement, with respect to Third Party Software provided by Aptitude
hereunder, Aptitude makes no warranties, but shall, to the extent legally permitted, pass through to Licensee all
warranties provided by the original licensor/manufacturer.
(b) Software Warranty Exclusions. The foregoing warranties do not apply to any of the following:
(i) Damage arising from any cause beyond Aptitude's reasonable control, including, without
limitation, damage due to the improper operation or use of Software by Licensee, abuse or misuse of Software
other than as designed or intended, malfunctions caused by alteration or tampering, or any reason specified in
915 (Excusable Delays) of this Agreement.
(ii) Damage resulting from movement of Software after its initial installation.
(iii) Malfunction or breakdown of Software due to attachment to, or addition or use of software not
supplied by Aptitude with the Software, or as a result of attachment of the Software to hardware or software by
anyone other than Aptitude, or as a result of hardware associated problems.
(iv) Damage, malfunction, or breakdown of Software due to improper operating environment,
including, without limitation, temperature, humidity, dust, or static charge.
(v) Destruction or damage, in whole or in part, of Software by any Person other than Aptitude.
(c) SOFTWARE WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES
STATED IN THIS ~6 AND IN ~12 OF THIS AGREEMENT, APTITUDE DISCLAIMS AND LICENSEE WAIVES
ALL WARRANTIES ON THE SOFTWARE FURNISHED HEREUNDER, INCLUDING, WITHOUT LIMITATION,
ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND
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LICENSES THE SOFTWARE "AS IS" AND "WITH ALL FAULTS." IN NO EVENT SHALL APTITUDE'S
LIABILITY UNDER THIS ~6, IN THE AGGREGATE FOR ALL CLAIMS WITH RESPECT TO ANY ITEM OF
SOFTWARE, EXCEED THE LICENSE FEE PAID HEREUNDER TO APTITUDE FOR SUCH ITEM OF
SOFTWARE, REDUCED BY THREE PERCENT (3%) FOR EACH MONTH OR PORTION THEREOF
FOLLOWING THE SOFTWARE ACCEPTANCE DATE THEREOF UNTIL THE EFFECTIVE DATE APTITUDE
IS NOTIFIED OF THE APPLICABLE CLAIM BY LICENSEE. THIS LIMITATION OF APTITUDE'S LIABILITY
SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT,
INCLUDING NEGLIGENCE. THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL OBLIGATIONS
OR LIABILITIES ON THE PART OF APTITUDE ARISING OUT OF OR IN CONNECTION WITH THE
DELIVERY, USE, ANDIOR PERFORMANCE OF THE SOFTWARE. ALL RIGHTS OF REVOCATION OF
ACCEPTANCE UNDER THE UNIFORM COMMERCIAL CODE ARE EXPRESSLY SUPERSEDED BY
LICENSEE'S RIGHTS AND APTITUDE'S OBLIGATIONS AS REFERENCED IN THIS ~6. EXCEPT AS
STATED IN THIS ~6, THE RISK OF THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS UPON
LICENSEE, AND LICENSEE UNDERSTANDS THAT THE FEES CHARGED HEREUNDER BY APTITUDE
SPECIFICALLY REFLECT THE ALLOCATION OF RISK AND EXCUSION OF DAMAGES PROVIDED FOR IN
THIS ~6.
(7) Functional Specifications.
(a) Functional Specifications. Aptitude shall provide guidance and assistance to Licensee and
Licensee shall complete all associated tasks requested by Aptitude for the purpose of defining and approving all
Functional Specifications for each of the items of Software licensed by Licensee from Aptitude hereunder.
(b) Customized Software. Licensee understands that such Functional Specifications shall be defined
in accordance with Aptitude standard applications and that any application and/or communication and/or functions
not currently supported by Aptitude shall be considered "customized" and, as such, may incur additional costs
and delivery schedules beyond those stated and agreed to by Aptitude.
(8) Training. Aptitude shall provide Licensee with initial training in accordance with the Software
Supplement.
(9) Maintenance Services. Except as expressly provided in 36, maintenance services are not provided
under this Agreement. Licensee shall execute a separate, governing Maintenance Agreement at the time this
Agreement is executed. Separate fees regarding maintenance services will commence as specified in the
Maintenance Agreement.
(10) Software License.
(a) Background. Aptitude and/or its suppliers have designed, developed, and made available
proprietary computer Software containing Trade Secrets of Aptitude and/or its suppliers. Use of this Software is
strictly governed by the terms of this Agreement. No title or ownership in the Software is transferred to Licensee.
\4
The License granted hereby is for Licensee's internal use only, and only in the Territory. Licensee shall not copy
or in any way duplicate the Software, except for necessary baCkup and archival procedures (non-printed, machine
readable form) approved by Aptitude in advance, and in writing, which approval shall not be unreasonably
withheld. In connection with any such permitted copy, Licensee shall reproduce and incorporate all Trade Secret
and/or Copyright notices, and the same shall be subject to all of the terms and conditions of this Agreement. All
copies made by Licensee of the Software and any Documentation, including, without limitation, all translations,
compilations, partial copies, etc., are the exclusive property of Aptitude. Software, Documentation, and all copies
thereof may not be assigned, conveyed, relicensed, sublicensed, published, disclosed, displayed, or otherwise
transferred (voluntarily, involuntarily, by operation of law, or otherwise) by Licensee for the benefit of a third
Person. Licensee shall not permit any other Person (exclusive of Licensee's employees and necessary
contractors acting in the proper scope of their services to Licensee) to use the Software, Documentation, or any
copy thereof, whether in the operation of a service bureau or otherwise, or permit access to the Software through
terminals outside of Licensee's business premises. Licensee shall secure and protect the Software licensed
hereunder and all copies thereof and all Documentation relating thereto in a manner consistent with the full
preservation of Aptitude's rights therein, and shall take such appropriate action, by instruction or agreement, with
its employees and necessary contractors as shall be reasonably requested by Aptitude in order to protect
Aptitude's rights therein. Licensee shall not adapt, modify, reverse engineer, decompile, or disassemble, in whole
or in part, any of the Software and/or any Documentation. Licensee is entitled to all Enhancements and/or
Maintenance Modifications to the Software and Documentation as are expressly provided for in this Agreement or
in any effective Maintenance Agreement between Aptitude and Licensee. Licensee is not entitled to any New
Product (or other product of Aptitude) hereunder, under any Maintenance Agreement, or otherwise, except
pursuant to a separate written agreement with Aptitude and separate payment therefore.
(b) License. Unless terminated in accordance with 314, Aptitude grants Licensee a perpetual,
nontransferable, revocable and nonexclusive license for use of the Software (machine readable version) and
Documentation therefore, solely by Licensee in accordance with the terms and conditions of this Agreement.
Such use shall be limited to Licensee only, and only within the Territory. Title to the Software remains in Aptitude.
Aptitude shall be the sole and exclusive owner of all rights to Patents, Copyrights, Trademarks, Trade Secrets,
and all other Intellectual Property rights in the Software and in all Maintenance Modifications, Derivatives and
Enhancements thereto.
(c) Third Party Software. Licensee shall execute all documents reasonably requested by Aptitude and
will abide by all reasonable requirements with respect to all Third Party Software licensed or sublicensed by
Aptitude to Licensee hereunder, or necessary to the performance of the Software hereunder in accordance with
the Functional Specifications, and Licensee agrees to maintain in effect all required licenses and approvals of all
applicable third Persons.
(11) Restrictions Upon Disclosure of Confidential Information.
(a) Protection. Recipient shall use commercially reasonable care, but in no event less than the same
degree of care it uses to protect its own most confidential and proprietary information, to prevent the unauthorized
use, disclosure, publication, or dissemination of Discloser's Confidential Information. Recipient shall provide
\5
Discloser's Confidential Information to its employees and necessary contractors only on a "need to know" basis,
and always subject to the terms of this Agreement. Recipient agrees to accept and use Discloser's Confidential
Information solely in connection with Recipient's participation in, and solely with respect to, this Agreement.
Recipient shall inform its employees and necessary contractors of the obligations contained within this 911 (a)
The parties acknowledge that Licensee is subject to the Colorado Open Records Act, and agree that compliance
with that act shall not be a breach of this Agreement. (b), and shall take such steps as may be reasonably
requested by Discloser to prevent unauthorized disclosure, copying, or use of Discloser's Confidential
Information. Recipient acknowledges that, in the event of a breach by Recipient of its obligations under this 911,
in addition to any other right or remedy available to Discloser, at law or in equity, Discloser will suffer irreparable
injury, and shall be entitled to seek preliminary and final injunctive relief (without bond except as otherwise
required by applicable law) in order to prevent any further or other breach of this 911 or any unauthorized use of
Discloser's Confidential Information. Recipient shall notify Discloser immediately upon discovery of any prohibited
use or disclosure of any Discloser's Confidential Information, or any other breach of the requirements of this 911
by Recipient (including, without limitation, by any contractors), and shall fully cooperate with Discloser to assist
Discloser in regaining possession of its Confidential Information and to prevent further unauthorized use or
disclosure of the same.
(b) Limited Disclosure. Recipient may disclose Confidential Information of Discloser if and to the
extent required by any judicial or administrative governmental request, requirement, or order, provided that
Recipient shall take reasonable steps to provide Discloser sufficient prior written notice in order to enable
Discloser to contest such request, requirement, or order. Recipient shall, except as otherwise expressly provided
by the terms of this Agreement, return all tangible Discloser Confidential Information, including, without limitation,
all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser immediately upon
Discloser's request.
(c) Ownership. All Discloser Confidential Information, including, without limitation, any and all
adaptations, enhancements, improvements, modifications, revisions, or translations thereof created by Discloser
or Recipient, shall be and remain the property of Discloser, and no license or other rights to such Confidential
Information is granted or implied hereby. Except as otherwise expressly provided in this Agreement, all Discloser
Confidential Information is provided "AS IS" and without any warranty, express, implied, or otherwise, regarding
its accuracy or performance.
(d) Survival. The obligation of Recipient to maintain the confidentiality of Discloser's Confidential
Information shall survive the expiration or termination of this Agreement indefinitely, unless and until: (i) such
Confidential Information shall cease to be Confidential Information; or, (iI) otherwise agreed to in writing by
Discloser.
(12) Intellectual Property Rights.
(a) Warranty. Aptitude warrants and represents to Licensee that, to Aptitude's knowledge the
Software does not infringe upon any Intellectual Property of any other Person; provided, however, that no
warranty is provided by Aptitude in this 912 with respect to any Third Party Software, but Aptitude shall, to the
\b
extent legally permitted, pass through to Licensee any infringement warranty with respect to all Third Party
Software provided by the original licensor/manufacturer. The foregoing warranty of Aptitude shall be ineffective if
any of the Software delivered by Aptitude hereunder has been modified, altered, or otherwise changed by
Licensee (or on behalf of Licensee by any Person other than Aptitude). Notwithstanding the foregoing, Aptitude
will have no liability or obligation under this ~12 where any claim of infringement is based upon: (i) the
combination, operation, or use of the Software with any Intellectual Property other than Aptitude Intellectual
Property, if such claim would have been avoided but for such combination, operation, or use; and/or, (ii) any
Derivative of any Aptitude Intellectual Property created by any Person other than Aptitude. Aptitude shall have
sole control over the selection of counsel and the defense of any legal proceeding or other claim described herein
and any settlement thereof, and Licensee shall provide Aptitude with all reasonable assistance in the defense of
the same.
(b) Remedy. In the event of a breach by Aptitude of the warranty contained within this ~12(a) hereof,
Aptitude shall have the right, as Licensee's sole remedy against Aptitude, at Aptitude's sole election, to: (i) modify
the allegedly infringing Software to be non-infringing, provided that such modification does not adversely impact
the functionality of the Software licensed to Licensee hereunder in any material respect; or, (ii) obtain a license to
enable Licensee to continue to use the applicable Software as contemplated in this Agreement. In the event
Aptitude fails to accomplish either of the foregoing alternatives within a commercially reasonable period, or if a
permanent injunction shall be entered against the use of the Software by Licensee, the license granted to
Licensee pursuant to this Agreement shall terminate on notice by either Party to the other Party, and, in such
event, Aptitude shall refund to Licensee the license fee provided for in ~3(a) of this Agreement, less: (i) three
percent (3%) thereof for each month, or part thereof, from the Software Acceptance Date to the effective date of
termination; and less, (ii) all amounts paid by Aptitude to Licensee pursuant to ~6 of this Agreement.
(c) Notification. Licensee shall promptly notify Aptitude of any claim described in this ~12 which
comes to the attention of Licensee.
(d) LIMITATION OF LIABILITY. OTHER THAN WITH RESPECT TO ITS EXPRESS OBLIGATIONS
UNDER THIS ~12, IN NO EVENT SHALL APTITUDE BE LIABLE TO LICENSEE IN CONNECTION WITH ANY
CLAIM OR OTHER MATTER DESCRIBED IN THIS ~12.
(e) Survival. The provisions of this ~12 shall survive the expiration or other termination of this
Agreement.
(13) Protection of Software.
(a) Aptitude Ownership. As between Aptitude and Licensee, Aptitude shall be the sole owner of all
right, title, and interest in and to the Software, the Documentation, and any and all copies or Derivatives therein or
thereof, created by either Party, exclusive only of the Licensee Materials. Licensee hereby irrevocably grants,
transfers, and assigns to Aptitude, without reservation, all worldwide ownership rights, title, and interest, including,
without limitation, any and all Patent, Copyright, Trademark and/or Trade Secret rights, which Licensee may have
or acquire, by operation of law or otherwise, in and to any or all of the Software, the Documentation, and in and to
)7
any other Intellectual Property of Aptitude, along with the good will of the business appurtenant to the use of any
of the same. Licensee further hereby irrevocably transfers and assigns to Aptitude any and all moral rights
Licensee may have in and to such Software, the Documentation, and in and to any other Intellectual Property of
Aptitude, and hereby forever waives and agrees never to assert any moral rights it may have therein, either prior
to or following the termination of the license granted pursuant to this Agreement. Licensee shall, at the request of
Aptitude, execute any and all documentation necessary to formally transfer such rights to Aptitude.
(b) Licensee Ownership. As between Aptitude and Licensee, Licensee shall be the sole owner of all
right, title, and interest in and to all Licensee Materials. Aptitude hereby irrevocably grants, transfers, and assigns
to Licensee, without reservation, all worldwide ownership rights, title, and interest, including, without limitation,
any and all Intellectual Property rights, which Aptitude may have or acquire, by operation of law or otherwise, in
and to any or all of the Licensee Materials, along with the good will of the business appurtenant to the use of any
of the same. Aptitude further hereby irrevocably transfers and assigns to Licensee any and all moral rights
Aptitude may have in such Licensee Materials, and hereby forever waives and agrees never to assert any moral
rights it may have therein, even after termination of the license granted pursuant to this Agreement. Aptitude
shall, at the request of Licensee, execute any and all documentation necessary to formally transfer such rights to
Licensee.
(c) Protection of Aptitude Intellectual Property. Aptitude shall have the right, but not the obligation, to
file and prosecute all rights in and to any or all of its Intellectual Property, in its own name and at its own cost,
within and outside of the Territory. Licensee shall cooperate with Aptitude, at the request of Aptitude, in providing
any information, documentation, or other assistance to Aptitude reasonably necessary to enable Aptitude to file
and prosecute any and all such rights. Licensee has no right to file or prosecute, in its own name, on behalf of
Aptitude, or otherwise, any right in or to any or all of the Intellectual Property of Aptitude without the prior consent
of Aptitude in each instance, which consent may be withheld in the sole and absolute discretion of Aptitude.
(d) Enforcement of Aptitude Intellectual Property. Aptitude shall have the right to enforce its
Intellectual Property throughout the Territory and elsewhere, in its own name, against any and all third Persons
whose activities: (i) violate, infringe, unfairly compete with, or are likely to violate, infringe, or unfairly compete with
any or all of the Software licensed to Licensee hereunder; or, (Ii) cause, or are likely to cause, harm, injury, or
damage to, Licensee or Aptitude. Licensee shall promptly notify Aptitude in writing of any such third Person
violation, infringement, or unfair competition of which Licensee acquires knowledge. Aptitude shall have the right
to refrain from taking any such action, if, in the determination of Aptitude, such requested action cannot be
undertaken without unreasonable expense or risk to Aptitude and/or to the Software, the Documentation, and/or
any other Intellectual Property right of Aptitude. Licensee shall not have the right to undertake any such action,
whether at its own expense, in its own name, on behalf of Aptitude, or otherwise, without, in each instance, the
prior consent of Aptitude, which consent may be withheld in the sole and absolute discretion of Aptitude.
(14) License Termination. Aptitude may terminate Licensee's license as granted herein if Licensee
commits any Material Breach of the terms and conditions of this Agreement. Upon notice of termination, Licensee
shall discontinue all use of the Software and shall immediately return to Aptitude all copies of the Software, all
related Documentation, and all other materials which contain any Confidential Information of Aptitude in
It
Licensee's possession or control. In such event, Licensee shall also permanently delete all copies of all such
items residing in Licensee's on or off line computer memory. Aptitude shall be entitled to enter into any location
controlled by Licensee to repossess and remove all Software, Documentation, and any other Confidential
Information of Aptitude, and/or to deactivate any Software. Licensee shall, within five (5) days following the
effective date of termination of Licensee's license hereunder, certify in writing to Aptitude, by an executive officer
of Licensee, that all copies of the Software and all Documentation, and all other materials required to be returned
to Aptitude hereunder or to be deleted have been returned or deleted as appropriate.
(15) Excusable Delays. Notwithstanding any other term or provision of this Agreement, Aptitude shall not
be liable for delays in delivery, failure to deliver, or otherwise to perform any obligation hereunder when such
delay or failure arises from causes beyond the reasonable control of Aptitude, including, without limitation, such
causes as acts of God or public enemies, labor disputes, supplier or material shortages, embargoes, rationing,
acts of local, state or national governments or public agencies, utility or communication failures, fire, flood, storms,
earthquake, settling of walls or foundations, epidemics, riots, terrorism, civil commotion, strikes, or war.
(16) Limitation of Liability. SUBJECT TO THE PROVISIONS OF ~12 AND ~6, IN NO EVENT SHALL
APTITUDE'S AGGREGATE L1ABILTY TO LICENSEE IN CONNECTION WITH ANY CLAIM OR OTHER
MATTER REGARDING THE AGREEMENT EXCEED ONE HUNDRED PERCENT (100%)OF THE LICENSE
FEE PAID BY LICENSEE. IN NO EVENT SHALL APTITUDE BE RESPONSIBLE TO LICENSEE FOR ANY
INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION,
LOSS OF DATA, LOSS OF PROFITS, AND/OR LOSS OF USE OF PRODUCT) EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR LOSS.
(17) Miscellaneous Provisions.
(a) Materiality of Breach. Each requirement, duty, and obligation set forth herein is substantial and
important to the formation of this Agreement, and, therefore, is a material term hereof.
(b) Governing Law; Jurisdiction. This Agreement is to be governed by and construed and enforced in
accordance with the internal laws of the state of Florida, without giving effect to the principles of conflicts of laws
thereof. BY ENTERING INTO THIS AGREEMENT, APTITUDE AND LICENSEE HEREBY EXPRESSLY WAIVE
ANY RIGHT EITHER PARTY MAY HAVE TO A TRIAL BY JURY IN CONNECTION WITH ANY SUCH
DISPUTE. .
(c) Assignment. Neither this Agreement, nor any rights, duties, or obligations of Licensee hereunder
may be assigned or delegated in whole or in part by Licensee, whether by operation of law or otherwise, without
the prior written consent of Aptitude, which consent shall not be unreasonably withheld. Subject to, and unless
otherwise provided in, this Agreement, each and all of the covenants, terms, and provisions contained herein shall
be binding upon, and inure to the benefit of, the successors and permitted assigns of the Parties hereto.
(d) Severability. If any provision of this Agreement shall be invalid or unenforceable, such provision
shall be deemed limited by construction in scope and effect to the minimum extent necessary to render the same
\~
valid and enforceable, and, in the event no such limiting construction is possible, such invalid or unenforceable
provision shall be deemed severed from this Agreement without affecting the validity of any other term or
provision hereof.
(e) Entire Agreement. This Agreement, together with the Software Supplement, constitute the entire
understanding and agreement of the Parties hereto with respect to the subject matter hereof, and supersede all
prior and contemporaneous agreements, understandings, inducements, and conditions, express or implied,
written or oral, between the Parties with respect thereto. The express terms hereof control and supersede any
course of performance or usage of trade inconsistent with any of the terms hereof. This Agreement may be
executed in any number of counterparts, each of which shall be an original as against any Party whose signature
appears thereon, and all of which together shall constitute one and the same agreement.
(f) Amendment and Waivers. Any term or provision of this Agreement may be amended, and the
observance of any term of this Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a writing signed by the Party to be bound thereby. The waiver by a Party of
any breach hereof or default hereunder shall not be deemed to constitute a waiver of any other breach or default.
The failure of any Party to enforce any provision hereof shall not be construed as or constitute a waiver of the
right of such Party thereafter to enforce such provision.
(g) Notices. Whenever any Party hereto desires or is required to give any notice, demand, consent,
approval, satisfaction, statement or request with respect to this Agreement, each such communication shall be in
writing and shall be effective only if it is delivered by personal service (WhiCh shall include delivery by delivery
service, over-night delivery service, telecopy, or telefax) or mailed, by United States certified mail, postage
prepaid, and addressed to each Party at its notice address provided on the cover page of this Agreement. Such
communications, when personally delivered, shall be effective upon receipt, but, if sent by certified mail in the
manner set forth herein, shall be effective three (3) days following deposit in the United States mail. Any Party
may change its address for such communications to another address in the United States of America by giving
notice thereof to the other Party in accordance with the requirements of this section.
(h) Construction of Agreement. This Agreement has been negotiated by the respective Parties hereto,
and the language hereof shall not be construed for or against any Party. The titles and headings herein are for
reference purposes only, and shall not in any manner limit the construction of this Agreement which shall be
considered as a whole.
(i) Further Assurances; Cooperation. Each Party hereto shall execute such further instruments,
documents, and agreements, and shall provide such further written assurances, as may be reasonably requested
by the other Party to better evidence and reflect the transactions described herein and contemplated hereby, and
to carry into effect the intents and purposes of this Agreement.
OJ Non-Solicitation. Licensee shall not solicit the employment or services of, nor employ or otherwise
retain, any employee or former employee of Aptitude who has been directly or indirectly involved in the
development, licensing, installation, or support of any Aptitude software product, such bar to remain in effect for a
~o
period ending two (2) years following the latter of the: (i) date of termination of such individual's employment
relationship with Aptitude or, (ii) Software Acceptance Date.
(k) Independent Contractor Status. Licensee hereby retains Aptitude as an independent contractor to
Licensee, and Aptitude hereby accepts such appointment. It is the intention of the Parties hereto that their
relationship, as created by this Agreement, is that of an independent contractor and contractee, and this
Agreement shall not create any other relationship, whether partnership, joint venture, agency, or otherwise,
between the respective Parties hereto. Neither Party shall hereby acquire any authority, whether actual, express,
implied, or apparent, to bind or otherwise obligate the other Party in any capacity. Aptitude shall
be entitled to list Licensee in any designation of Aptitude licensees, in advertising or other published materials of
Aptitude.
(I) Absence of Third Party Beneficiary Rights. No provision of this Agreement is intended or shall be
construed to provide or create any third party beneficiary right or any other right of any kind in any Person other
than the Parties and their proper successors and assigns, and all terms and provisions hereof shall be personal
solely between the Parties to this Agreement and such proper successors and assigns.
(m) Effect of License Termination. No termination of the Software license granted in this Agreement
shall terminate the continuing operation or effect of any other provision of this Agreement, or shall
deny to any Party hereto the right to enforce any of its rights granted pursuant to this Agreement,
whether such enforcement occurs prior to or following any such termination.
1)
IN WITNESS WHEREOF, the Parties have hereunto set their hands, by their duly authorized representatives.
PITKIN COUNTY, COLORADO
CLERK AND RECORDER
....,
Name: (please print)
By:
N
Ti
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Clerk and Recorder
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,JSDrJ fY\;llu
By:
Name:
Title:
Date:
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<(,r~.5or~' d<.ln'l_ .7t'.
Name: (please print)
Executive Vice President
(1/0/ ~]-
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EXHIBIT 1
Software License Agreement
Between
Aptitude Solutions (Aptitude) and
Pitkin County, Colorado, Clerk and Recorder (Licensee)
ONCORE SOFTWARE SUPPLEMENT
I. The Licensed Software
1. The OnCore System which includes the following functionality:
A) Document/transaction logging, tracking and automatic queuing moves documents through the office in a
paperless manner.
B) Document imaging, which can be performed up-front. Up-front image scanning eliminates the need for
"A" pages.
C) Document recordation, including digitally applied recordation stamping, eliminating slip printers.
D) Transaction tracking and filing. Includes complete histories of all recorded instruments with history of any
transmittal forms from sender and receipts generated by the Licensee. All items stored by system
generated transaction number independent of official record database.
E) Quality control feature allowing for a final view of all documents prior to final archival.
F) Document indexing which allows the user to establish index fields.
G) Document verification allowing the user to define fields to be verified.
H) In-house search allowing users to search the database in a variety offlexible search routines.
I) Internet search utility, which allows for basic search and advanced search structures.
J) Production tracking and management reporting.
1}2J
K) Accounting and audit reporting.
L) Cashiering of both individual and total cash drawer closeouts.
M) Supervisory level edit checking and error correction.
N) On-line help and support manual.
0) Electronic recording capability.
2. All necessary documentation and manuals.
3. All necessary 3'd party control licenses are supplied with the OnCore System.
II. Installation Services
1. Additional items and/or services required for completion of the installation project:
A) Installation of the OnCore system on Licensee servers in a test area for initial training and testing period.
B) Database conversion of Licensee's County Official Records database (please see complete pre-install
workbook for complete listing of data fields) into the OnCore system database, plus conversion of
existing images and or providing a programming link to existing images.
C) Training of Official Records department employees on the OnCore System. Pricing includes 1 trainer for
2 full day(s) of on-site training free of charge. Additional training as follows will be billed at $500 per day
per trainer:
Descri tion
Site Visit Evaluation & Process Mapping
Worksho
Su ervisor Trainin
User Trainin
Professional Searchers and Web Users
Trainin
On-Site Su
Duration
1 day(s)
Trainers
2
Totals
2 day(s)
1
1
1
2 da s
1
Licensee is responsible for travel costs incurred by Aptitude. Travel expenses incurred during training and
installation will be invoiced monthly.
D) Installing the OnCore system into a "live" environment upon completion of testing, converting and
training. Pricing anticipates involvement of Aptitude on-site during the first day of the live environment.
Licensee is responsible for travel costs incurred by Aptitude.
E) One-time Set-up Fee for Remote Diagnostics Equipment. Includes remote diagnostic server. IS THIS
OUR SUPPORT MACHINE?
~~
III. License Fee:
$67,500.00
The License Fee shown above includes the items listed in Section I and II of this Software
Supplement. The License Fee does not include any travel expenses incurred by Aptitude.
IV. Extras
1. Items not included in the Cost are considered "Extras" as noted below:
A) Software modifications - There will be a $175/per hour charge for any additional hours.
B) Additional training will be billed at $5WO per trainer per day.
,JjA Initials Aptitude Solutions
~nitials Licensee
V. Maintenance Fees
Basic Maintenance Charge
(3 years @ $10,000.00 per year)
1$30,000.001
VI. Scope of Services
1. Aptitude will provide the following services:
A) Aptitude will appoint a project manager for the Pitkin County transition.
B) Aptitude will deliver the software and services set forth in the Software License Agreement between
Aptitude Solutions and Pitkin County.
C) Aptitude will supply the required hardware specifications to Licensee so that Licensee may set about
procuring the necessary components at their own expense.
D) Aptitude will supply Licensee with software specifications for required operating systems and network
software so that Licensee may set about procuring the necessary components at their own expense.
E) Aptitude will assist Licensee (at no charge) telephonically with set up issues for installation of the
necessary hardware and operating/network software environment. Aptitude can also provide on-site
assistance with set-up issues at our then prevailing hourly rates for technical support.
F) Aptitude will handle all of the data conversion specifically mentioned in the Software License
Agreement.
G) Aptitude will handle the installation of the OnCore application into a test area on Licensee's servers
for initial testing and training.
?!
H) Aptitude will provide 2 full day(s) of training on-site at the offices of the Pitkin County Courthouse (or
other location within Pitkin County, Licensee may designate) at no charge. Additional training days
beyond those outlined in this Software Supplement (Section II) will be provided if necessary as
determined by Licensee, at Aptitude's then prevailing rates for those services.
I) Aptitude will provide all of the necessary documentation referenced in the Software License
Agreement.
j) Aptitude will provide an interface to the Tax Assessor's office as referenced in Exhibit 4 attachment
containing Tyler/Eagle's DocumentWebService documentation. It is understood that the Pitkin Tax
Assessor's office must be on the latest version of the Tyler/Eagle Assessor system to take advantage of
this interface.
k) Aptitude will ensure that the interface to the county's Plat Scanner/Printer (Scanner: Xerox 2 ips
Synergix scanner, Printer: Xerox 8825 printer) functions as follows. For plats, maps, and any other
relatively infrequently recorded oversize images, the county scans the large documents to disk using the
software provided with the scanner. The resultant TIFF images (typical output format from all plat scanner
software) are then SUbsequently imported into OnCore in the Scan process.
VI. Scope of Services (continued)
2. Licensee will provide the following services:
A) Licensee will appoint a project manager to oversee the various responsibilities of Licensee's Office.
B) Licensee will be responsible for the timely procurement, at its own expense, of the necessary
hardware referenced as minimum required hardware in the pre-install workbook given to Licensee in
our initial site visit.
C) Licensee will be responsible for the timely procurement, at its own expense, of the necessary
software referenced as minimum required software in the pre-install workbook given to Licensee.
D) Licensee will be responsible for the timely procurement, at its own expense, of the necessary network
topology and related cabling as referenced in the pre-install workbook given to Licensee.
E) Licensee is responsible for supplying Aptitude with the necessary information on its present database,
for the purpose of conversion, in a timely fashion. The information may include record layout
information and copies in a media mutually agreed on for the actual data.
F) Licensee is responsible for insuring that the appropriate personnel are available for training and other
purposes when site visits become n1/essary by Aptitude.
~ Initials Aptitude Solutions
rm.,. U"MOO
~~
ADDENDUM B
SOFTWARE MAINTENANCE AGREEMENT
between
APTITUDE SOLUTIONS, INC.
("Aptitude")
having its principal place of business at:
497 State Road 436, Suite 177
Casselberry, Florida 32707
Facsimile: 407-260-2315
and
PITKIN COUNTY, COLORADO
CLERK AND RECORDER
("Licensee")
having its address at:
530 East Main Street
Aspen, CO 81611-1948
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(1) Definitions and Identifications. For all purposes of this Agreement, unless the context specifically
indicates otherwise, and in addition to other terms defined only within the internal text of this Agreement or
incorporated by reference into this Agreement, the terms defined in this section shall be applicable. Unless
otherwise specifically provided herein, all defined terms used in the Software License Agreement shall have the
same meaning assigned thereto when used in this Agreement.
Agreement.
(a) Basic Maintenance Fees - the fees for Covered Maintenance Services specified in 97 of this
(b) Basic Maintenance Period - the basic maintenance periOd specified in 96 of this Agreement.
(c) Covered Maintenance Services - includes all Conformity Maintenance Services and all
Upgrade Maintenance Services.
(d) Conformity Maintenance Services - services necessary to insure that the Software operates in
conformity with all Functional Specifications.
(e) Critical Defect - an Error in the Software or Documentation which renders the Software unable
to perform a Functional Specification.
(f) Non-Critical Defect - any defect in the Software or Documentation other than a Critical Defect.
(g) Online Support - the provision of diagnostic advice and assistance concerning the use and
operation of the Software via a virtual private network or similar method.
(h) Telephone Support - the provision of general information and diagnostic advice and
assistance concerning the use and operation of the Software via telephone.
(i) Upgrade Maintenance Services - all Enhancements developed by Aptitude for the Software
and related Documentation during the term of this Agreement.
(2) Agreement. This agreement (the "Agreement") covers the maintenance of Software licensed or
delivered by Aptitude for the benefit of Licensee pursuant to that certain concurrently effective Software License
Agreement (the "Software License Agreement") between the parties. THIS AGREEMENT PROVIDES
MAINTENANCE SERVICES ONLY WITH RESPECT TO SOFTWARE, INCLUDING THIRD PARTY
SOFTWARE, SUPPLIED BY APTITUDE TO LICENSEE PURSUANT TO THE TERMS OF THE SOFTWARE
LICENSE AGREEMENT. THIS AGREEMENT DOES NOT PROVIDE FOR MAINTENANCE SERVICES FOR
ANY THIRD PARTY SOFTWARE NOT SUPPLIED BY APTITUDE TO LICENSEE OR FOR ANY HARDWARE.
(3) Initial Maintenance Term. The initial term ("Initial Term") of this Agreement shall begin ninety (90) days
following the Software Acceptance Date ("Maintenance Agreement Effective Date"). Unless sooner terminated in
accordance with 915 hereof, or unless extended in accordance with 94 hereof, the term of this Agreement shall
remain in effect for a periOd ending on the date immediately prior to the third (3rd) annual anniversary date of the
Maintenance Agreement Effective Date.
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(4) Automatic Renewal and Subsequent Term. Upon expiration of the Initial Term, this Agreement shall
be automatically extended for successive one (1) year periods (each such one (1)year period referred to as a
"Subsequent Term"), unless the term of this Agreement is terminated during any such Subsequent Term in
accordance with ~15 of this Agreement.
(5) Software. This Agreement covers all Software as described in the initial License Summary incorporated
into the Software License Agreement as Exhibits 1, 2, and 3 attached thereto. Unless Licensee otherwise notifies
Aptitude, all subsequently ordered Software installed by Aptitude shall be automatically added to this Agreement
immediately upon the expiration of the Warranty Period for such subsequently ordered Software.
(6) Basic Maintenance Period. The Basic Maintenance Period commences on Monday and continues
through Friday of each week (7:30 a.m. to 6:00 p.m., Licensee Local Time), except on the following recognized
holidays ("Holidays"): New Year's Day, Martin Luther King Day, Presidents' Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and the day after Thanksgiving, and Christmas Day.
(7) Basic Maintenance Fees. Basic Maintenance Fees during the Initial Term are set forth in the License
Summary. Basic Maintenance Fees become effective upon the expiration of the Warranty Period with respect to
the applicable item of Software. Basic Maintenance Fees for subsequently ordered Software shall be the Aptitude
Basic Maintenance Fees in effect and applicable thereto at the time of delivery. Aptitude's Basic Maintenance
Fees for all Software originally included in the initial License Summary will not be increased during the Initial Term
of this Agreement. For each Subsequent Term, Basic Maintenance Fees may be adjusted by Aptitude annually
(subject to any written agreement of the parties with respect to a specified period of non-adjustment), effective as
of each annual anniversary date of the Maintenance Agreement Effective Date. Each such adjustment shall be
as mutually agreed upon in writing by the parties; provided, however, that, in the event the parties fail to so agree
on or prior to an annual anniversary date of the Maintenance Agreement Effective Date, the annual Basic
Maintenance Fees for each respective item of Software for any annual period shall equal the annual Basic
Maintenance Fees in effect for such item of Software during the initial annual period (i. e., anniversary date of the
Maintenance Agreement Effective Date to the date immediately preceding the next annual anniversary date of the
Maintenance Agreement Effective Date) in which such item of Software first became subject to Basic
Maintenance Fees hereunder (the "Initial Annual Period"), multiplied by one hundred and five percent (105%) for
the first annual period following the Initial Annual Period, which percentage multiplier shall increase by five (5)
percentage points for each annual period following such first annual period (i.e., 110% for the second annual
periOd following the Initial Annual Period, 115% for the third annual period following the Initial Annual Period, etc.),
including, without limitation, any annual period which includes a period of non-adjustment as described above.
Notwithstanding any other term or provision of this ~7, under no circumstances shall the Basic Maintenance Fees
payable to Aptitude hereunder in respect of any item of Software during any applicable annual period be less than
the Basic Maintenance Fees payable to Aptitude in respect of the same item of Software for the applicable annual
periOd immediately preceding the applicable annual period for which each respective annual computation is made
hereunder.
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(8) Payment of Basic Maintenance Fees.
(a) Annual Invoices. Basic Maintenance Fees shall be invoiced and paid annually in advance.
Invoices for annual Basic Maintenance Fees shall be due and payable within thirty (30) days following receipt of
invoice by Licensee.
(b) Subsequently Ordered Software. Basic Maintenance Fees for subsequently ordered Software
shall be paid annually in advance but pro-rated for the applicable annual period of this Agreement based upon the
conclusion of the Warranty Period for such subsequently ordered Software.
(c) Failure of Payment. In the event payment is not made as specified in this Agreement, Licensee
shall pay interest at the rate of one and one-half percent (1.5%) per month (or the highest applicable legal rate,
whichever is lower) on the outstanding overdue balance for each month or part thereof that such sum is overdue;
provided, however, that if Licensee is a governmental agency or authority subject to a "Prompt Payment" or
similar statutory requirement for the transaction contemplated in this Agreement, such statutory requirement shall
control to the extent the same is inconsistent with the requirements of this !l8(c).
(9) Covered Maintenance.
(a) General. Aptitude will provide to Licensee all required Covered Maintenance Services. All
Conformity Maintenance Services and all Online Support and Telephone Support will be performed by Aptitude
during the Basic Maintenance Period. Covered Maintenance Services do not include the costs of accessories
and expendable supplies necessary to operate the Software, such as magnetic tape cards, optical disks, disk
packs, paper, and similar items, and such items are not provided free of charge by Aptitude hereunder.
(b) Upgrade Maintenance Services. As a part of this Agreement, Licensee shall also have the right to
receive from Aptitude, without additional service charge, all Upgrade Maintenance Services. Upgrade
Maintenance Services include the right to receive, during the applicable Software Warranty Period and during the
term of this Agreement (except as otherwise provided in !l9(c) hereof), all Enhancements to the Software,
including all related update releases and associated Documentation. The right to receive Upgrade Maintenance
Services does not include installation of any new release for an Enhancement or any training, and also does not
include any New Product, all of which are separately chargeable by Aptitude.
(c) Support of Outdated Software. Suppqrt by Aptitude of previous versions of Software will cease
ninety (90) days following the availability of a new Enhancement release. Failure of Licensee to install new
Software Enhancement releases or any other correction or improvement provided by Aptitude shall relieve
Aptitude of responsibility for the improper operation or any malfunction of the Software as modified by any
subsequent correction or improvement, but in no such event shall Licensee be relieved of any of its payment
obligations to Aptitude hereunder, and Aptitude shall be released thereafter from its obligation to support the
Software as provided herein. After failure to install for in excess of ninety (90) days, in order for Licensee to
return to current Software release level, Licensee must obtain a Software audit at the then current Aptitude rates.
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Following any such reinstatement to current release level, Aptitude will reinstate Covered Maintenance Services
hereunder.
(d) Online Supporl and Telephone. Online Support and Telephone Support includes: (i) remote
diagnostics; (ii) service desk and dispatch; (iii) question and answer consulting; and, (iv) non-chargeable user
error remedies. A toll-free maintenance telephone number is provided for Telephone Support from Aptitude's
corporate offices. Remote diagnostics equipment is required at a minimum of one Licensee location for remote
support, which equipment is to be obtained by Licensee at its sole expense.
(e) Exclusions. Covered Maintenance Services do not include any of the following: (i) maintenance
outside the agreed upon Basic Maintenance Period; (ii) maintenance required by: (a) operator error or improper
operation or use of the Software by Licensee; (b) modifications, repairs, or additions to the Software performed by
Persons other than Aptitude, and Licensee shall notify Aptitude of any such modifications, repair, or addition; (c)
modifications, repairs, or additions to hardware or to any software supplied by any Person other than Aptitude; (d)
damage to Software by Licensee's employees or third Persons, including, without limitation, damage caused by
improper operation or use of other software, hardware, or other equipment; (e) causes beyond the reasonable
control of Aptitude, including, without limitation, any matter described in 314 (Excusable Delays) of this
Agreement; (f) electrical disturbances, outages, brownouts, or similar events; (g) Aptitude's requested
involvement in determining or solving a problem with the Software and/or any other software, hardware, or
equipment not covered by this Agreement; (h) damage to optical or magnetic media or any work effort associated
with copying, reconstructing, or restructuring files or data; (i) damage resulting from radiation, radioactivity,
ultraviolet light, or similar agents; OJ training services other than those expressly provided for without charge
pursuant to the terms of the Software License Agreement; (k) travel costs, including, without limitation, mileage,
air fare, meals, lodging, and similar items, except those incurred by Aptitude in connection with the provision of
Covered Maintenance Services; (I) any New Product; (m) Software removed or detached from the System; or, (n)
modifications to the Software or to any of the Functional Specifications requested by Licensee.
(10) Response Times. Aptitude will use its best good faith efforts to respond within four (4) hours (but only
during the Basic Maintenance Period) of notice from Licensee of the need for Conformity Maintenance Services
or notice of a request for Online Support or Telephone Support. Any such notice from Licensee shall, to the
extent possible, identify all Critical Defects, and, in connection with the provision of any Conformity Maintenance
Service, Online Support, and/or Telephone Support, Licensee shall, at its ow~ expense, provide its full good faith
support and cooperation with Aptitude's efforts at resolution. Aptitude will use its best good faith efforts to correct
all Critical Defects within twenty-four (24) hours after notice from Licensee of the applicable Critical Defects. Non-
Critical Defects will be corrected, if correction is reasonably possible, before the earlier of: (a) seventy-five (75)
days following the date of next release (following notice of defect from Licensee) of an Enhancement relating to
the applicable Software component; or, (b) one (1) year following notice of defect from Licensee.
(11) Bil/able Call Maintenance. Any maintenance service or related service or training other than Covered
Maintenance Services will be charged at Aptitude's then current billable call maintenance rates in effect. Such
rates apply to time spent performing maintenance, including travel time. The minimum charge for billable call
maintenance is one-half of one hour (1/2 hour). Should billable call maintenance services require travel to the
Licensee's site, Licensee will also be invoiced for actual expenses of travel, including, without limitation, as
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applicable, mileage, airfare, meals, lodging, and similar expenses; provided, however, that, in the event Licensee
is a governmental agency or authority, travel expenses shall be limited in amount by applicable federal or state
statutory requirements. All charges for billable call maintenance shall be due and payable within thirty (30) days
following invoice by Aptitude.
(12) Taxes. All Software maintenance fees and all other charges payable hereunder are exclusive offederal,
state, and local Taxes. Licensee shall payor reimburse Aptitude for all such applicable Taxes (exclusive of
income and gross receipts Taxes properly payable by Aptitude) and Aptitude may add such Taxes to invoices
submitted to Licensee.
(13) LIMITATION OF LIABILITY. IN NO EVENT SHALL APTITUDE BE RESPONSIBLE TO LICENSEE
UNDER THE TERMS OF THIS AGREEMENT OR OTHERWISE FOR ANY INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS,
ANDIOR LOSS OF USE OF PRODUCT) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
LOSS OF USE. IN NO EVENT SHALL APTITUDE'S LIABILITY HEREUNDER WITH RESPECT TO THIS
AGREEMENT IN THE AGGREGATE FOR ALL CLAIMS EXCEED ONE HUNDRED PERCENT (100%) OF THE
MAXIMUM BASIC MAINTENANCE FEES PAID HEREUNDER BY LICENSEE TO APTITUDE DURING ANY
ONE-YEAR PERIOD. THE LIMITATIONS OF APTITUDE'S LIABILITY HEREUNDER SHALL APPLY
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING
NEGLIGENCE. LICENSEE UNDERSTANDS THAT THE FEES CHARGED HEREUNDER BY APTITUDE
SPECIFICALLY REFLECT THE ALLOCATION OF RISK AND EXCLUSION OF DAMAGES PROVIDED FOR IN
THIS SECTION, AND THAT THE REMEDIES PROVIDED TO LICENSEE HEREUNDER ARE ADEQUATE.
(14) Excusable Delays. Notwithstanding any other term or provision hereof, Aptitude shall not be liable for
delays in delivery, failure to deliver, or otherwise to perform any obligation hereunder when such delay or failure
arises from causes beyond the reasonable control of Aptitude, including, without limitation, such causes as acts of
God or public enemies, labor disputes, supplier or material shortages, embargoes, rationing, acts of local, state,
or national governments or public agencies, utility or communication failures, fire, flood, storms, earthquake,
settling of walls or foundations, epidemics, riots, terrorism, civil commotion, strikes, or war.
(15) Termination.
(a) Termination at Will. During the Initial Term or any Subsequent Term of this Agreement,
neither Party may terminate the term of this Agreement for reasons other than those expressly provided for in this
Agreement; provided, however, that either Party hereto may terminate the term of this Agreement at any time as
of and effective at the conclusion of the Initial Term or any Subsequent Term upon notice to the other Party given
not later than ninety (90) days prior to the conclusion of the then current term of this Agreement.
(b) Termination by Aptitude for Non-Payment or Upon Termination of License. Aptitude may
terminate the term of this Agreement and its obligation to provide Covered Maintenance Services or any other
service hereunder upon notice to Licensee in the event (i) Licensee fails to make any payment when due to
Aptitude after Thirty (3D) days notice of such failure to pay from Aptitude; or, (ii) in the event of the termination of
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Licensee's license of the Software. No termination pursuant to this subsection (b) shall relieve Licensee of its
payment obligations to Aptitude pursuant to the terms of this Agreement or otherwise.
(c) Termination by Licensee. Licensee may terminate the term ofthis Agreement upon notice to
Aptitude in the event Licensee's license of the Software is terminated pursuant to S 12(b) of the Software License
Agreement.
(d) General Effect of Termination. No termination of the term of this Agreement shall terminate any
right or remedy available to a Party as a consequence of any breach of this Agreement prior to the effective date
of termination.
(16) Miscellaneous Provisions.
(a) Materiality of Breach. Each requirement; duty, and obligation set forth herein is substantial and
important to the formation of this Agreement, and, therefore, is a material term hereof.
(b) Governing Law; Jurisdiction. This Agreement is to be governed by and construed and enforced in
accordance with the internal laws of the state of Colorado, without giving effect to the principles of conflicts of
laws thereof. Each Party hereto consents to the exclusive personal jurisdiction and exclusive venue of the state
courts with jurisdiction in Pitkin County, Colorado, for a resolution of all disputes arising out of the construction,
interpretation, or enforcement of any term or provision of this Agreement, and each Party hereby waives the claim
or defense that such courts constitute an inconvenient forum. BY ENTERING INTO THIS AGREEMENT,
APTITUDE AND COUNTY HEREBY EXPRESSLY WAIVE ANY RIGHT EITHER PARTY MAY HAVE TO A
TRIAL BY JURY IN CONNECTION WITH ANY SUCH DISPUTE.
(d) Binding upon Successors and Assigns. Subject to, and unless otherwise provided in, this
Agreement, each and all of the covenants, terms, and provisions contained herein shall be binding upon, and
inure to the benefit of, the successors and assigns of the parties hereto.
(e) Severability. If any provision of this Agreement shall be invalid or unenforceable, such provision
shall be deemed limited by construction in scope and effect to the minimum extent necessary to render the same
valid and enforceable, and, in the event no such limiting construction is possible, such inyalid or unenforceable
provision shall be deemed severed from this Agreement without affecting the validity of any other term or
provision hereof.
(f) Entire Agreement. This Agreement, together with any and other material incorporated herein,
constitute the entire understanding and agreement of the Parties hereto with respect to the subject matter hereof,
and supersede all prior and contemporaneous agreements, understandings, inducements, and conditions,
express or implied, written or oral, between the Parties with respect thereto. The express terms hereof control
and supersede any course of performance or usage of trade inconsistent with any of the terms hereof. This
Agreement may be executed in any number of counterparts, each of which shall be an original as against any
Party whose signature appears thereon, and all of which together shall constitute one and the same agreement.
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(g) Amendment and Waivers. Any term or provision of this Agreement may be amended, and the
observance of any term of this Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a writing signed by the Party to be bound thereby. The waiver by a Party of
any breach hereof or default hereunder shall not be deemed to constitute a waiver of any other breach or default.
The failure of any Party to enforce any provision hereof shall not be construed as or constitute a waiver of the
right of such Party thereafter to enforce such provision.
(h) Title to Software Change Materials. All changes, Maintenance Modifications, Enhancements, and
other additions to the Software or any Documentation shall remain proprietary to Aptitude, and shall be subject to
all of the terms and conditions of the Software License Agreement.
(i) Notices. Whenever any Party hereto desires or is required to give any notice, demand, consent,
approval, satisfaction, statement, or request with respect to this Agreement, each such communication shall be in
writing and shall be effective only if it is delivered by personal service (which shall include delivery by delivery
service, over-night delivery service, telecopy, or telefax) or mailed, by United States certified mail, postage
prepaid, and addressed to each Party at its notice address provided on the cover page of this Agreement. Such
communications, when personally delivered, shall be effective upon receipt, but, if sent by certified mail in the
manner set forth above, shall be effective three (3) days following deposit in the United States mail. Any Party
may change its address for such communications to another address in the United States of America by giving
notice thereof to the other Party in accordance with the requirements of this section.
U) Construction of Agreement. This Agreement has been negotiated by the respective Parties hereto,
and the language hereof shall not be construed for or against any Party. The titles and headings herein are for
reference purposes only, and shall not in any manner limit the construction of this Agreement, which shall be
considered as a whole.
(k) Further Assurances; Cooperation. Each Party hereto shall execute such further instruments,
documents, and agreements, and shall provide such further written assurances, as may be reasonably requested
by the other Party to better evidence and reflect the transactions described herein and contemplated hereby, and
to carry into effect the intents and purposes of this Agreement.
(I) Independent Contractor Status. Licensee hereby retains Aptitude as an independent contractor to
Licensee, and Aptitude hereby accepts such appointment. It is the intention of the Parties hereto that their
relationship, as created by this Agreement, is that of an independent contractor and contractee, and this
Agreement shall not create any other relationship, whether partnership, joint venture, agency, or otherwise,
between the respective Parties hereto. Neither Party shall hereby acquire any authority, whether actual, express,
implied, or apparent, to bind or otherwise obligate the other Party in any capacity.
(m) Absence of Third Party Beneficiary Rights. No provision of this Agreement is intended or shall be
construed to provide or create any third party beneficiary right or any other right of any kind in any Person other
than the Parties and their proper successors and assigns, and all terms and provisions hereof shall be personal
solely between the Parties to this Agreement and such proper successors and assigns.
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(n) Fees and Costs. In the event of any litigation or arbitration between the Parties in connection with
or arising out of this Agreement, or to enforce any right or obligation of either Party under this Agreement, or for a
declaratory judgment, or for the construction or interpretation of this Agreement or any right or obligation under or
impacted by this Agreement (in each case, a "Proceeding"), the Party which substantially prevails in any such
Proceeding shall be entitled to recover from the other Party all of such prevailing Party's fees and costs therein,
including, without limitation, attorney's fees, court costs, and costs of expert witnesses and of investigation,
incurred at or in connection with any level of the Proceeding, including all appeals thereof.
IN WITNESS WHEREOF, the Parties have hereunto set their hands, by their duly authorized representatives.
PITKIN COUNTY, COLORADO
CLERK AND RECORDER
/'
Name: (please print)
Clerk and Recorder
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.
tijf:!:ht::M
Name: (please print)
/ ..."} .~
Oi r-..JSo...J
Name: (plea e print)
1 ~j
~;?" &h~im,1r
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Name: (please print)
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Name: Paul Miller
Title: Executive Vice President
Date: (//6/~U"r
r I
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EXHIBIT 2
Software License Agreement
Between
Aptitude Solutions (Aptitude)
And
Pitkin County, CO, Clerk and Recorder (Licensee)
AI/NDEX SOFTWARE SUPPLEMENT
The Licensed Software
Aptitude will provide the Licensee with the ailNDEX Software which includes the following
functionality:
Reads every scanned document.
Identifies the type of document and counts the pages.
QA's the document for font type and margin standards.
Automatically extracts relevant recorded information such as grantor(s), grantee(s), legal
description, related documents, return to address and other user state-defined fields
regardless of where the information resides in the document.
Exports the approved data directly to the OnCore Recording System.
Presents the "auto-indexed" document and corresponding image to the user for verification.
Allows the user to approve the data or to use the ailNDEX rubber band feature to extract the data
directly from the document.
Provides an exception-based workflow process for image quality and staff questions.
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Field of Use
The Licensee is limited to use of the software for purposes only for documents that are recorded
in Aptitude's OnCore official records solution. The licensee is not licensed for use of the software
for use with other systems of record including but not limited to court systems. As the pricing of
this license is based on the volume expected to be processed through the OnCore official records
solution, any use of the software outside this context is not permitted under this license.
The software license fee and associated maintenance fee is based on the current expected
volume of transaction processing for the software. The current expected volume is:
· 10,000 documents processed through ailNDEX per year
If the volume of transaction processing grows in future years, Licensee agrees to the then current
list price for license and maintenance fees.
Professional Services
Aptitude will provide the following services required for the completion of the installation:
Installation of Software.
Installation of the licensed software on Licensee servers in a test area for initial
training and testing period.
Installation of the licensed software into a "live", production environment.
Extraction of County data and images for processing.
Development of a Knowledge Base to enable software to "learn" specifics for county data and
images.
Training of key Official Records department employees on the use of the software.
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Fee Summary
The table below summarizes the fees for this agreement.
ITEM AMOUNT ($)
aifNDEX License Fee $25,000.00
Installation and Trainina Fee $5,600.00
Knowledae Base Fee $5,000.00
Annual Maintenance Fee $4,500.00
Licensee is responsible for actual travel expenses incurred by Aptitude. Travel expenses
incurred during training and installation will be invoiced monthly.
Extras
Items not included in the Fee Summary are considered "Extras" as noted below:
Software modifications - There will be an additional fee for any software modification requested
by the Licensee. The billable rate for any such modification is $175 per hour.
Additional training. Additional training beyond that defined above will be billed at $850 per trainer
per day.
Scope of Services - Aptitude
Aptitude will provide the following services:
Aptitude will appoint a project manager for the Licensee transition.
Aptitude will deliver the software and services set forth in the Software License Agreement
between Aptitude Solutions and Licensee.
Aptitude will supply the required hardware specifications to Licensee so that Licensee may set
about procuring the necessary components at their own expense.
Aptitude will supply Licensee with software specifications for required operating systems and
network software so that Licensee may set about procuring the necessary components at their
own expense.
Aptitude will assist Licensee (at no charge) telephonically with set up issues for installation of the
#4 Initials Aptitude Solutions
-F- Initials Licensee
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necessary hardware and operating/network software environment. Aptitude can also provide
on-site assistance with set-up issues at our then prevailing hourly rates for technical support.
Aptitude will install the software into a test area on Licensee's servers for initial testing and
training.
Aptitude will provide training on-site at the offices of the Licensee. Additional training days
beyond those outlined in this Software Supplement will be provided if necessary as
determined by Licensee, at Aptitude's then prevailing rates for those services.
Aptitude will provide all of the necessary documentation referenced in the Software License
Agreement.
Specifically excluded from this agreement include the following:
Processing of data and images. If the Licensee requests data and images to be indexed or
redacted, Aptitude will provide Licensee with a proposal for such work.
Modifications and/or enhancements to the licensed software. Licensee is licensing the most
currently released version of the software and this scope of services is to implement this
version without modification. Any modifications or enhancements to the software, including
creation of additional reports, are explicitly out of scope of this agreement. If the customer
requests modifications or enhancements, including additional reports, Aptitude will provide
Licensee with a proposal for such work.
On-site support following go-live and customer acceptance. If the customer requests on-site
support or additional training following system acceptance, Aptitude will provide such
assistance at the then prevailing rate, plus expenses.
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Scope of Services - Licensee
Licensee will provide the following services:
Licensee will appoint a project manager to oversee the various responsibilities of Licensee's
Office.
Licensee will be responsible for the timely procurement, at its own expense, of the necessary
hardware referenced as minimum required hardware in the pre-install workbook given to
Licensee in our initial site visit.
Licensee will be responsible for the timely procurement, at its own expense, of the necessary
software referenced as minimum required software in the pre-install workbook given to
Licensee.
Licensee will be responsible for the timely procurement, at its own expense, of the necessary
network topology and related cabling as referenced in the pre-install workbook given to
Licensee.
Licensee is responsible for supplying Aptitude with the necessary information on its present
database, for the purpose of conversion, in a timely fashion. The information may include
record layout information and copies in a media mutually agreed on for the actual data.
Licensee is responsible for insuring that the appropriate personnel are available for training and
other purposes as site visits by Aptitude personnel become necessary.
Licensee is responsible for testing the county's data and images after they have been converted
and prior to go-live.
:fA. Initials Aptitude Solutions
'V Initials Licensee
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yo
SPECIAL TERMS AND CONDITIONS APPLICABLE TO MENTIS TECHNOLOGY
SOLUTIONS, LLC ("MENTIS") SOFTWARE PRODUCTS, DOCUMENTATION, AND ENHANCEMENTS
The following particular terms and conditions apply to all software products, and all related Documentation (and all subsequent
Enhancements), which are sublicensed by Aptitude (from Mentis as original licensor) to Licensee hereunder (collectively, "Mentis Productsn).
(I) Internal Use. The deployment and use of the Mentis Products by Licensee shall be solely for its internal business or governmental
operations. Licensee acquires and can transfer no title to the Mentis Products.
(2) Use, Access, Transfer, or Duplication. Licensee shall not (a) use, sublicense, or otherwise transfer the use of any Mentis Product for the
purpose of commercial time sharing, service bureau, or any other rental or sharing arrangement; (b) permit access to any Mentis Product by anyone except
Aptitude, Aptitude's employees, Licensee's employees, and except for consultants, agents, and subcontractors who are bound by a written obligation of
confidentiality in a form acceptable to Aptitude and to Mentis; (c) transfer any Mentis Product to alternative locations except for temporary transfers in the event
of a disaster; or, (d) duplicate any Mentis Product except for a reasonable number of backup, archival, or in-house disaster recovery copies.
(3) Restrictions on Assignment. In addition to any restriction on assignment or transfer contained within the Software License Agreement or any
other agreement between Aptitude and Licensee, the written approval of Aptitude and of Mentis must be obtained prior to any assignment by Licensee of its
sublicense rights or other rights in or to any Mentis Product; provided, however, that no such approval shall be unreasonably withheld, conditioned, or delayed.
rhe foregoing provision shall not prohibit assignments by operation oflaw.
(4) Reverse f.:ngineering. Licensee shall not reverse engineer, disassemble, or decompile any Mentis Product, unless such right is explicitly
provided by law, and is necessary to provide for the interoperability of such Mentis Product with other software.
(5) Export Laws. Licensee shall comply with all relevant export laws and regulations of the United States to insure that the Mentis Products
sublicensed to Licensee are not directly or indirectly exported in violation of United States law.
(6) Confidential Information. Licensee understands and agrees that: (a) the Mentis Products sublicensed to Licensee are or contain confidential
and proprietary information of Mentis, and Licensee shall use a commercially reasonable degree of care to protect the same and the confidentiality thereof; (b)
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(8) MENTIS DISCLAIMERS. MENTIS MAKES NO WARRANTY OR REPRESENTATION OF ANY TYPE OR NATURE TO LICENSEE,
INCLUDING, WITHOUT LIMITATION. ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
MENTIS DISCLAIMS ALL LIABILITY AND OBLIGA TlON TO LICENSEE FOR DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL. OR
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(10) Commercial Product. The Mentis Products sublicensed to Licensee are provided as a commercial item (as defined under United States law)
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COUNTERSIGNATURE ACCEPTANCE:
ACCEPTED AND AGREED TO:
By:
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Title:
Executive Vice President
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