HomeMy WebLinkAboutC87-053 Westlaw AgreementWESTLAW Subscriber Agreement AGREEMENT, between WEST PUBLISHING COMPANY ("WEST") and Eagle County Attorney, Eagle County Government ("Subscriber") as follows: 1. Access to Data Base and License WEST grants to Subscriber during the term of this agreement (i) a right of access to the data ("Data") in the WESTLAW data base ("Data Base") through a terminal in Subscriber's office for use in connection with Subscriber's professional work and (ii) a limited, nonexclusive, nontransferable license to use Data copyrighted (or copyrightable) by WEST and other contributors to the Data Base identified therein as copyright owners ("Contributors") in the performance of Subscriber's professional work. Any storage, reproduction, transmission, or transfer for consideration of any portion of the Data Base is strictly prohibited. 2. Subscription Fee Subscriber shall pay WEST the fee for Plan described in Schedule A. Subscriber may elect to substitute one of the other applicable plans then available by giving West thirty days written notice. No plan can be adopted for a period of less than three months. Training is provided on the terms specified in Schedule A. Fees are exclusive of any State or local sales, use or other taxes of a similar nature and are subject to change (with notice) prior to the effective date of this agreement and twelve months thereafter upon sixty days notice. 3. Billing and Payment After the end of each calendar month, WEST will sent to Subscriber an invoice setting forth charges incurred during such month in accordance with the adopted plan. Within thirty days after receipt of invoice, Subscriber will pay to WEST the full amount due. Thereafter WEST may charge Subscriber up to the maximum legal interest on any unpaid balance. 4. Equipment The Equipment ("Equipment") will be provided by Subscriber and, if supplied by Subscriber, must be tested by West as to its compatibility with WESTLAW. Equipment will consist of: Block Mode Character Mode Terminal Type IBM PC -XT Terminal: Type _ Modem IBM 1200/2400 Model No. Software Westmate I.D. Number: Single Spaced _ Double Spaced I.D. Used Modem Software WESTLAW° C87-53-10 2 Schedule B1, B2 and B3 cover purchase and lease options available if Subscriber wishes to purchase or lease the equipment from West Services, Inc. (WSI). Equipment not purchased but provided to the customer by WSI under specified options, during the term of this agreement shall be installed in an environment prepared by subscriber as requested and may be removed by WSI upon termination of this agreement. Equipment supplied by subscriber will be installed and maintained by subscriber at its expense. WEST (or its designated representative) shall have the exclusive right and obligation to connect, maintain and disconnect at any time the access line from the Equipment to the Data Base. 5. Alteration of Equipment Equipment shall be kept by Subscriber in its sole possession. Subscriber is responsible for all use of and any damage to Equipment An alteration or attachment to any piece of Equipment may be made only upon prior written approval from WEST. The term "alteration" means any change to any piece of Equipment which deviates from the manufacturer's physical, mechanical or electric machine design for such piece of Equipment whether or not additional devices or parts are required or may be added. The term "attachment" means the mechanical or electric or electronic interconnection of other equipment and devices to any piece of Equipment. 6. Ownership and Dissemination of the Data Base and the Licensed Data WEST and Contributor(s) shall remain the exclusive owners of all right, title and interest in the Data Base and Data licensed hereunder and all copyrights (and renewals, thereof) heretofore or hereafter secured therein. All publication, dissemination and other rights in the Data Base and the Data licensed hereunder are reserved to WEST and Contributor(s) in all languages, formats and media throughout the world for the sole and exclusive use or any other disposition by WEST and Contributor(s) or their assignees or grantees at any time and from time to time without obligation or liability to the Subscriber. Subscriber shall not make any printout or other tangible form of retrieved Data available to any other person without first obtaining a written agreement from such person not to further disseminate such material. 7. Copyright Notice Unless each printout page or other tangible form of retrieved Data shall contain a WEST copyright notice, Subscriber shall stamp or otherwise affix on each printout page or other tangible form of retrieved Data a WEST copyright notice which, except if Subscriber is notified to the contrary, shall be the following notice (including the current calendar year): "(c) COPR. WEST 14_ NO CLAIM TO ORIG. U.S. GOVT. WORKS" 8. Responsibility for Use of Data and Limitation of West's Liability Subscriber assumes sole responsibility for all use of the Data Base and Data. WEST representatives are not authorized to assist with the performance of professional work. If Subscriber requests and receives assistance from WEST personnel in researching any point of law, such assistance shall be at Subscriber's risk, and WEST shall not have any responsibility or liability with respect thereto. WEST's full liability 3 hereunder for any and all claims of damages, for any cause whatsoever and regardless of the form of the action, whether in contract or tort, including negligence, shall be limited to the fee paid or payable by Subscriber for access to and use of the Data Base and Data during the period any events which are the basis for any such claim(s) occur. IN NO EVENT SHALL WEST BE LIABLE FOR ANY DAMAGES RESULTING FROM SUBSCRIBER'S INABILITY OF FAILURE TO PERFORM PROFESSIONAL WORK, OR FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES RELATING IN WHOLE OR IN PART TO SUBSCRIBER'S RIGHTS UNDER THIS AGREEMENT, EVEN IF WEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9. Term and Termination This agreement will become effective, subject to approval and execution by an authorized representative of WEST in St Paul, Minnesota, on the date the Equipment provides access to WESTLAW and will continue in force until terminated by either party upon sixty days written notice to the other party; provided, however, that it may not be terminated prior to one year after the date on which this agreement first becomes effective. Either party, however, shall have the immediate right to terminate this agreement if the other party commits a material breach hereof. The second sentence of Section 1 and all of Sections 2, 3, 4, 6, 7, and 8 shall survive any termination of this agreement. 10. Entire Agreement This agreement and its schedules constitute the entire understanding between the parties with respect to the subject matter hereof and supersede any and all prior understandings and agreements, oral and written, relating hereto. Any amendment hereof must be in writing and signed by both parties. 11. Assignment Neither this agreement nor any rights hereunder may be assigned, sublicensed, or otherwise transferred, in whole or in part, by Subscriber, without prior written consent from WEST. 12. Limitation of Claims Except for fees due hereunder or improper use of the Data Base, no claim, regardless of form, arising out of this agreement may be made, or action based upon such claim brought, by either party more than eighteen months after the basis for such claim becomes known to the party wishing to assert it. 13. Severability If any provision of this agreement shall be determined to be void, invalid, unenforceable or illegal for any reason, the validity and enforceability' of all the remaining provisions shall not be affected thereby. 14. Non -Waiver The failure of either party to exercise any of its rights under this agreement for a breach thereof shall not be deemed to be a waiver of such rights nor shall the same be deemed to be a waiver of any subsequent breach. Notice All notices under this agreement shall be given in writing to the parties as follows: To WEST: West Publishing Company To Subscriber: 50 West Kellogg Boulevard Eagle County Attorney P.O. Box 3526 P.O. Box 850 St. Paul, Minnesota 55165 Eagle, Colorado 81631 Attqjion: James Y Taylorl WEST Signa Title: _ Date: February 1, 1983 (6) 4 Subscriber Signatu Title: re tornelz Date: March 26, 1987 Street/Bldg: McDonald Bldg, 550 Broadway City/State: Eagle, Colorado 81631 Telephone: -in-i / 328-7-111 (Ext- 51.5) Contact: James R. Fritze, Eagle --County Attorney f .. SCHEDULE B4 TO WESTLAW SUBSCRIBER AGREEMENT WESTMATE'" SOFTWARE LICENSE AND DOWNLOADING AMENDMENT AGREEMENT entered into between and among WEST PUBLISHING COMPANY ("West"), WEST SERVICES, INC. ("WSI") and Eagle County Attorney, Eagle County Government ("Subscriber") as follows: WESTMATE'" SOFTWARE LICENSE 1. Software. The WESTMATE'" computer program and new versions thereof ("Program"), together with the accompanying user documentation ("Documentation"), designed to cause certain equipment to emulate West's custom-designed computer terminal ("WALT") are collectively referred to herein as "Software." 2. Designated Equipment. The equipment identified by Subscriber pursuant to paragraph 5 hereof is referred to herein as "Designated Equipment". 3. License. WSI hereby grants Subscriber a non-exclusive, non- transferable limited license to (a) use the Software on the Designated Equipment for the purpose of accessing online database services, specifi- cally including, but not limited to, WESTLAW, West's computer-assisted legal research service; and (b) if no backup copy is provided by WSI, make one copy of each copy of the Program provided hereunder solely for backup purposes, provided that each such copy shall include the appropriate copyright/proprietary information notice embedded in and/or affixed to the Program. Copying of the Program (other than as authorized solely for backup) and copying of the Documentation is expressly prohibited. All access to and use of WESTLAW by means of the Software shall be subject to and in accordance with the terms of the WESTLAW Subscriber Agreement ("Subcriber Agreement") between Subscriber and West, and all access to and use of other online database services by means of the Software shall be subject to and in accordance with any and all agreements authorizing Subscriber to access such services. SUBSCRIBER SHALL NOT REPRODUCE, COPY, MODIFY, MERGE, DISPLAY, TRANSMIT, DISTRIBUTE, TRANSFER OR OTHERWISE USE THE SOFTWARE, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED HEREIN. 4. Fees. For the rights granted herein, Subscriber shall pay a non-refundable license fee in the amount set forth in Exhibit 1 hereto. 5. Configuration. Subscriber shall complete an Information Checklist in the form attached hereto for each equipment unit (consisting of a terminal, modem and printer) with which the Software will be used. WSI shall assign each such unit an identification number ("ID Number") and shall provide Subscriber with one copy of the Software, assigned a corresponding iden- tification number and configured for use only with the unit bearing the same 10 Number, for each unit identified in an Information Checklist. -1- 6. New Versions. WSI may issue new versions of the Software from time to time but is under no obligation whatsoever to do so. WSI shall provide Subscriber with new versions of the Software, if any, for a one-year period after the effective date of this Agreement at no additional charge and shall enter Subscriber's subscription to new versions of the Software as issued upon the terms set forth in Exhibit 1 hereto; provided, however, that WSI may but shall not be obligated to provide or support any new version if it determines that the level of performance of such new version is unacceptable when used with the Designated Equipment. Upon receipt of a new version Subscriber shall imme- diately cease all use of the prior version and destroy all copies then in its possession. 7. Title. Subscriber acknowledges that the Software licensed hereunder shall remain the exclusive property of the copyright proprietor identified therein and those claiming through such proprietor and that Subscriber shall have no right to nor interest in the Software other than as expressly granted herein. Subscriber shall not remove any iden- tification or notices affixed to the Software or its packaging. 8. LIMITED WARRANTY. EXCEPT AS EXPRESSLY STATED HEREIN, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUBSCRIBER BEARS ALL RISK TO QUALITY AND PERFORMANCE OF THE SOFTWARE. WSI warrants that the diskettes upon which the Program is provided to Subscriber shall be free from defects in material and workmanship under normal use for a period of 90 days from the effective date of this License. The performance of the Software varies with various manufacturers' equipment with which it is used. WSI does not warrant the level of performance of the Software when used with the Designated Equipment or that earlier versions superseded by new versions (whether or not distributed to Subscriber) will con- tinue to be capable of accessing WESTLAW or other online database services. WSI does not warrant that the Software or the functions contained in the Program will meet Subscriber's requirements, operate without interruption or be error free. 9. LIMITATION OF LIABILITY. SUBSCRIBER'S EXCLUSIVE REMEDY FOR BREACH BY WSI OF ITS WARRANTY SHALL BE REPLACEMENT OF ANY DEFECTIVE DISKETTE UPON ITS RETURN TO WSI WITHIN THE WARRANTY PERIOD OR, IF WSI IS UNABLE TO PROVIDE A REPLACEMENT DISKETTE WHICH IS FREE OF DEFECT, TERMINATION BY SUBSCRIBER OF THIS AGREEMENT AND REFUND OF THE LICENSE FEE PAID HEREUNDER. IN NO EVENT WILL WSI BE LIABLE FOR ANY LOST PROFITS OR OTHER DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY OTHER TYPE OF DAMAGES, ARISING OUT OF THIS AGREEMENT OR THE USE OF THE SOFTWARE LICENSED HEREUNDER, EVEN IF WSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. -2- DOWNLOADING AMENDMENT TO WESTLAW SUBSCRIBER AGREEMENT 10. Scope of Amendment. In conjunction with the Software license granted herein, West and Subscriber agree to amend the Subscriber Agreement bet- ween them as specifically set forth in paragraphs 11 and 12 hereof. The Subscriber Agreement shall remain in full force and effect (including, without limitation, the copyright notice provision thereof) according to its terms and conditions as amended. All terms contained herein shall have the meaning attri- buted to them in the Subscriber Agreement. 11. Permitted Downloading. In the event the Software (including new versions thereof) functionally permits downloading, West grants Subscriber a revocable, non-exclusive, non -transferable, limited license within the United States, during the regular course of legal research and related legal work, (i) to transfer, in machine-readable form, a display screenful of Data at a time from the Data Base to a storage device that is under Subscriber's exclusive control ("Download") and (ii) to retain such Downloaded Data under Subscriber's exclusive control for a reasonable period of time not to exceed 30 days solely in order to quote such Downloaded Data (appropriately cited and credited) in memoranda, briefs and similar legal work product created by Subscriber; provided, however, that such actions shall be performed only through the use of the Software and of the Equipment (which must be certified as compatible with WESTLAW by West), that such actions shall not be performed for specific con- sideration, that such Downloaded Data shall not be published or broadcast, and that such Downloaded Data shall not be further downloaded or otherwise reproduced, stored, disseminated, transferred or used in any form or by any means without West's prior written permission. 12. Modification of Permission. Notwithstanding any other provi- sion of this Agreement or the Subscriber Agreement, West shall have the right, from time to time, to modify or revoke the license granted in paragraph 11 hereof and/or the license granted and restriction contained in the Subscriber Agreement (after the initial one-year term thereof) by giving Subscriber at least 60 days' prior written notice thereof. Subscriber shall comply with any such modification or revocation. GENERAL PROVISIONS 13. Term and Termination. This Agreement shall become effective upon approval and execution by West in St. Paul, Minnesota and shall con- tinue in force until terminated by any party upon 60 days' prior written notice to the other parties; provided, however, that WSI may not terminate the Software license granted herein for one year after the effective date. Notwithstanding the foregoing, the downloading license granted in paragraph 11 hereof may be modified or revoked by West at any time as stated in paragraph 12 hereof, and this Agreement shall terminate immediately upon the termination of the Subscriber Agreement or upon written notice of termination by any party to the other parties if a party commits a material breach hereof. Upon any termination of this Agreement, Subscriber shall cease all use of the Software, destroy all copies thereof then in its possession and take such other actions as WSI may reasonably request to ensure that no copies of the Software �cTui „ its ro�S`SSen- 14. Assignment. Nefther this Agreement nor any rights hereunder may be assigned, sub c nsed or otherwise transferred, in whole or in part, by Subscriber, without West's and WSI's prior written consent. 15. Severability. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions shall not be affected thereby. 16. Non -Waiver. Failure of a party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such pro- vision nor of the right to enforce such provision. 17. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Minnesota. 18. Notices. All notices hereunder shall be given in writing to West at 50 West Kellogg Boulevard, St. Paul, Minnesota 55102, Attention: James Taylor; to WSI at West Services, Inc., 58 West Kellogg Boulevard, St. Paul, Minnesota 55102, Attention: Jeanne C. Bush; and to Subscriber at the address set forth below. WEST Signi Tit1E Date WEST SERVICES, INC. JBSCRIBER irm Name Eagle County Attorney l a-] 7 a :0i1.it J_OVA] ili l .1 idress P.O. Box 850 Eagle, Colorado 81631 Sign tact James R. Fritze Eagle County Attorney Title ASST TREAS & ASST SECY Telgphone ( 303 ) 328-7311 (Ext. 515) Signature James R. F itz Title Eagle County A torney -4- C11 C-1, EXHIE IT 1 TO SCHEDULE 64 OF WESTLAW SUBSCRIBER AGREEMENT WESTMATE"` SOFTWARE LICENSE FEES Units Per Subscriber (Per Agency For Gov't. License Software Subscribers) x Fee First diskette: $225.00 Less Introductory discount -125.00 Net price for first diskette $100.00 Additional diskettes License fee for subscribers requiring 28 or more diskettes Total fee for Software Subscription Service First year after effective date of Schedule B4 After first year - new version fee PAYABLE IN FULL WITHIN 30 DAYS AFTER DELIVERY $ 25.00 /per unit 775.00 N/C $ 25.00 /per unit Total Charge ,f/00-00 The fees set forth herein are subject to change by West Services, Inc. with notice prior to the effective date of Schedule B4 and upon 60 days' prior written notice thereafter. These fees are exclusive of any applicable state or local sales, use or other taxes, which shall be paid by the subscriber. February 1, 1986 Information Checklist for WESTMMYSOffiVare Firm Name: Eagle County Attorne Address: Eagle County Government P.O. Box 850 Eagle, Colorado 81631 Subscribers signature: Contact: James R. F it . ,_Egle County Attorney Location Of PC. McDonald Building, 550 Broadway Eagi-e,o ora o Phone: ('gni) 198-7111 (Fxt 515)-- R. Fritze, Ezy�le County Attorney Date: 3-26-87 Please fill in or check the appropriate answer for each question below. This information is necessary in order to program the WESTMATE software for your PC. Any missing information may cause a delay in your receipt of the software. If you have any questions about the information requested, please call WESTLAWR Customer Service at 1-800-328-9833. PC MS-DOS version 2.0 (WANG version 1.1) or higher and at least 256K memory are required to run WESTMATE. What PC is being used (e.g. AT&T 6300, IBM PC -XT, WANG PC)? Manufacturer: IBM Model: PC -XT Does the PC have an enhanced keyboard with 12 function keys? xx yes If You Are Is this PC (check one) d Current — Currently used for WESTLAW WESTLAWaccess? Subscriber— An addtional unit for WESTLAW access? — A replacement unit for WESTLAW access? What unit is being replaced? Manufacturer: Model: no Modem You will need a modem capable of 1200 baud operation which also has autodial and auto answer features. What Modem is being used? — Hayes Smartmodem 1200 or — Ven -Tel MD212 Plus II (MD212-5E). 1200b. x_ Other Manufacturer: TRM 120012400 b. — Racal-Vadic Maxwell 1200v Model: Is this modem 100% Hayes (AT) Command Set Compatible? x YES NO Is this modem 100% Maxwell ('Control E') Command Set Compatible? YES NO Is this modem 100% Ventel MD212 Plus II Command Set Compatible? YES NO Which Communications Port is being used (e.g. COM1, COM2)? NOTE: Only COM1 is supported on WANG PC's. Communications Port _ Printer What type of printer is attached to your PC? X Parallel Serial None Manufacturer: 113M Mout'-i. PrGprintzr g C; ; SCHEDULE A TO WESTLAW SUBSCRIBER AGREEMENT PLAN 2 - GOVERNMENT DIAL-UP SERVICE I. Monthly Subscription Charge. Suo�-b�hall pay a monthly subscription charge per agency $100.0v II. Equipment. Equipment shall be purchased pursuant to Schedule B1. Equipment shall be purchased pursuant to Schedule B2. Equipment shall be leased pursuant to Schedule B3. Equipment shall be provided by Subscriber. The Equipment must be certified by West as being com- patible with WESTLAW. III. Usage Charges. Subscribers have two options available for usage charges: the Hourly Usage Schedule and the Block Usage Schedule. Charges under both of these options will be billed monthly. These monthly usage charges are available only for government personnel accessing WESTLAW for government purposes. Use of WESTLAW by non-government personnel or for non-government purposes is strictly prohibited. For purposes of calculating WESTLAW usage, each hour of usage on the Allfeds and Allstates databases will count as 1.5 hours. A. Hourly Usage Schedule. Hourly usage charges shall be determined pursuant to the following table (such charges shall be increased by $20 per hour for Subscribers in Alaska, Hawaii and Puerto Rico): Hours of Use Hourly Usage Rates 0 - 3 $P05 4 - 10 11 - 30 100 31 - 50 95 51 - 100 95 101 - up 90 Cumulative Charges $ 345 1,080 3,080 4,980 9,730 Current awareness databases are billed at the special rate of $60 per hour (such charges shall be increased by $20 per hour for subscribers in Alaska, Hawaii, and Puerto Rico). Current awareness databases presently include: Tax Notes Highlights CCH Tax Day: Federal CCH Tax Day: State CCH Tax Day: Federal and State t Use of the Public Utilities Reports database will be billed at a rate of $150 per hoar (such charges shall be increased by $20 per hour for subscribers in Alaska, Hawaii, and Puerto Rico). B. Block Usage Schedule. Election of this Schedule allows a government agency to commit to a specific number of hours each month. Under the Block Usage Schedule each agency's usage stands alone, there is no pooling of time between agencies. Hours used in excess of the monthly commitment will be billed at the excess hourly rate. The agency may adjust it's com- mitment on a monthly basis, provided West is given five (5) days written notice before the beginning of the month. The change will be effective at the first of the next billing month. The agency may elect to return to the Hourly Usage Schedule on 60 days prior written notice to West. MONTHLY MONTHLY EXCESS BLOCK BLOCK HOURLY USAGE CHARGE RATE 50 $ 4,250 $90.00 75 5,900 84.00 100 7,500 80.00 150 10,400 74.00 200 13,000 70.00 250 15,300 66.00 300 17,400 63.00 350 19,900 62.00 400 22,200 61.00 450 24,500 59.00 500 26,800 59.00 Block usage rates in excess of 500 hours are available upon request. Use of the Public Utilities Reports database will be billed at a rate of $150 per hour (such charges shall be increased by $20 per hour for subscribers in Alaska, Hawaii and Puerto Rico). IV. Off -Line Printing.. Off -Line printing will be available at U per line. In addition, printing performed by WESTPRINT, West's print and mail service, will result in a $15 handling charge per individual user per day. V. Training Charges. Each of Subscriber's personnel who will use WESTLAW must complete a basic training session conducted ,f by West or its designated representative on the use of WESTLAW. West or its designated representative shall provide training at a charge of $70 per trainee. The minimum training charge for the first day shall be $280. The maximum training charge per subscriber is $2,100. Training charges include written instructional materials, on-line training courses and personalized instruction. Subscriber shall receive a credit of one hour free WESTLAW usage for use by each trainee so trained which shall be available solely to offset monthly usage charges in excess of the minimum monthly usage charges and shall be cancelled if not used within 15 days of-,�uch trainee's basic training session. Is 5 Number of Subscriber's Personnel to be Trained. VI. Modification of Charges and Taxes. The charges set forth herein are subject to change by West with notice prior to the effective date of the Subscriber Agreement and upon 60 days prior written notice after the initial one year term thereof, and are exclusive of any applicable state or local sales, use or other taxes, which shall be paid by Subscriber. VII. Third Party Online Services. Subscriber does/ does not (check one) want access to the third party on ire services available through WESTLAW which are indicated on Schedule H to the WESTLAW Subscriber Agreement. 4 IS, Notice All notices under this agreement shall be given in writing to the parties as follows: To WEST: West Publishing Company 50 West Kellogg Boulevard P.O. Box 3526 St Paul, Minnesota 55165 Atte n: James ylor WEST PUBLISn ti Title: _ Date: Febnjory 1. 1983 (6) � / i To Subscriber: Eagle County Attorney P.O. Box 850 Eagle, Colorado tsibil Subscriber Signatur _ Title: Eagle Count Attorney Date: March 26, 1987 Street/Bldg: McDonald Bldg. , 550 Broadway City/State: Eagle. Colorado Telephone:_ 303 1 328-7311 (Ext. 515) Contact: James R. Fritze, Eagle County Attorney