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HomeMy WebLinkAboutC06-287 SOFTWARE LICENSE AND SERVICES AGREEMENT THIS SOFTWARE LICENSE AND SERVICES AGREEl\,'1ENT is entered into by and between GOVERNMENT TECHNOLOGY SYSTEMS, LLC, a Colorado limited liability company (hereinafter "GTS"), and the OFFICE OF THE EAGLE COlJNTY PUBLIC TRUSTEE (hereinafter the "PT"). GTS and the PT may be referred to together herein as the "Parties. " RECITALS A. GTS has developed a System, as defined below that consists of proprietary software that will enable electronic filing (e-filing) of foreclosure documents with the various offices of the Public Trustee within the State of Colorado and automate the management of data contained in such foreclosure documents. B. The Parties desire to enter into this Agreement under which the PT will license and implement the System and GTS will install the System and supply certain training, technical support, and other services as set forth in the terms and conditions stated herein. NOW, THEREFORE, in consideration of the mutual covenants and undertakings of the Parties hereinafter set forth, and for other good and valuable consideration hereby acknowledged, GTS and the PT agree as follows: ARTICLE I DEFINITIONS "Acceptance Date" means the date upon which the PT accepts or is deemed to have accepted the System pursuant to Paragraph 4.3. "A2reement" means and includes this Software License and Services Agreement together with all Exhibits. "Attornev Subscriber A2reement" means and refers to an attorney subscriber agreement that may be executed between GTS and individual Colorado attorneys, law firms or attorney organizations who elect to use the System. "Authorized Users" means and includes: (i) all employees of the PT and (ii) all contractors or agents of the PT with a reasonable need to have access to or utilize the Licensed Products in furtherance of this Agreement or in connection with the operation of the office of the PT. However, under no circumstances, shall the PT have more than fifteen (15) Authorized Users at any given time. "Confidential Information" means any proprietary information, trade secret, or other confidential information of a Party. 1 A' "Data" means data which has been created, organized, assembled or maintained within or in conjunction with the System. "Document" means those documents (together with associated data) filed, created, used, transmitted, and/or stored on the System. "Effective Date" means and refers to the latest date this Agreement is executed by a Party. "GTS Website" means the GTS Internet web site currently located at www.2ov-soft.com. "Improvement" means any idea, design, concept, technique, discovery or invention, whether or not patentable or copyrightable, made to the Licensed Products. "Licensed Attorney" means and includes any attorney who is licensed to practice law in the State of Colorado. "Licensed Products" means and includes the System together with accompanymg specifications, documentation and/or manuals. "Licensed Territorv" means the county in which the PT is located. "License Term" means the initial term and any Renewal Periods of this Agreement as defined below. "Public Trustee" means any Office of the Public Trustee within the State of Colorado. "Readv Queue" means the PT's electronic mailbox accessible via the System where the PT will receive notification of filed Documents and other notices and information from Subscribers through the System. "Renewal Period" means any period for which this Agreement IS renewed pursuant to Paragraph 2.7. "Specifications" means and refers to the specifications for the System set forth in Exhibit A. "Subscriber" means a Licensed Attorney, law firm, or attorney organization that enters into an Attorney Subscriber Agreement. "System" means the GTS software system designed, operated and maintained by GTS, which possesses the functionality set forth in the Specifications in Exhibit A. The System is also referred to as GTSData, which is a trademark of GTS. 2 "Travel Expenses" means expenses associated with travel, lodging, and meals for GTS employees and contractors incurred in performing services set forth in Exhibit B. During the initial term of this Agreement, travel expenses shall include either 44.5 cents per mile for ground travel or the airline ticket price for coach air travel, and lodging and meals expenses shall be the incurred amount not to exceed $150 per person per day or the amount allowed per IRS regulations. After the initial term, the Parties shall mutually agree on the travel, lodging, and meal amounts applicable for each Renewal Period. Should the Parties be unable to agree on such amounts, the travel, lodging, and meal amounts shall be increased by three (3) percent from the previous term. "User ID" means the identification number and password issued by GTS to an Authorized User, which permits such Authorized User to have access to, and use of, the System. "User Information" means all necessary information to identify an Authorized User in order for GTS to provide such User access to the System, including, but not limited to, the individual's full name and title and written confirmation from the PT that such individual is an Authorized User. ARTICLE II LICENSE 2.1 GRANT OF LICENSE. GTS hereby grants to the PT, and the PT hereby accepts, a non-exclusive, non-transferable license to use the Licensed Products in the Licensed Territory in accordance with the terms and conditions ofthis Agreement. 2.2 AUTHORIZED USE. Provided the PT displays and otherwise maintains all of GTS' copyright and other proprietary rights notices on the Licensed Products and otherwise complies with the terms and conditions of this Agreement, the PT may: 2.2.1 install the System and all other applicable Licensed Products on all computer workstations in the offices of the PT and on the computers of Authorized Users not located in the offices of the PT; 2.2.2 distribute all other Licensed Products, not addressed in Paragraph 2.2.1, to all Authorized Users; and 2.2.3 maintain a single backup copy of each of the Licensed Products in the offices of the PT. The PT agrees that the use of the Licensed Products by its Authorized Users will be for the sole purpose of fulfilling its obligations and duties as a Public Trustee for the State of Colorado in accordance with Articles 37, 38, and 39 of Title 38 of the Colorado Revised Statutes and any other applicable state or federal laws. 3 2.3 RESTRICTIONS ON USE. The PT shall not use the Licensed Products for any purpose except as expressly set forth in Paragraph 2.2. In addition to any other use not expressly set forth in Paragraph 2.2, the PT shall not: 2.3.1 distribute, disclose or provide the Licensed Products to or for the benefit of any person or entity who is not an Authorized User; 2.3.2 alter, modify, decompile, disassemble or attempt to reverse engineer the Licensed Products; 2.3.3 create any derivative works from the Licensed Products; 2.3.4 use the Licensed Products or any material retrieved from the Licensed Products in any manner whatsoever that may infringe any intellectual property right or proprietary interest of GTS; 2.3.5 allow or permit use of Data or Documents in a manner contrary to or in violation of any applicable federal, state, or local law, rule or regulation, including, without limitation, the fair credit reporting laws and regulations, privacy laws and regulations, and fair debt collection practices laws and regulations; 2.3.6 without the prior written consent of GTS or except as expressly permitted under this Agreement, place or install any portion of the Licensed Products on any electronic media, including, but not limited to, timesharing services, multiple processing units, multiple site arrangements, service or software rental bureaus, list servers, online services, electronic bulletin boards or forums, world wide web sites or any other server that is Internet enabled; or 2.3.7 without the prior written consent of GTS, make or attempt to make any Improvement. 2.4 OWNERSHIP. The PT acknowledges that the Licensed Products, and any and all Improvements, are the sole and exclusive property of GTS and that this Agreement does not confer any transfer of title to, or ownership of, the Licensed Products. The PT will acquire no ownership or proprietary rights whatsoever in the Licensed Products through the use of the Licensed Products by its Authorized Agents or its participation (with the written consent of GTS) in the development of an Improvement. The PT agrees to aid GTS, if necessary, to procure and perfect ownership of any intellectual property rights in the Licensed Products and/or any Improvement. 2.5 CONTROL OF DOCUMENTS. Subject to Paragraph 10.3, the PT retains sole control over a Document once such Document is filed with, or created by, the PT. 2.6 LICENSE TERM. The initial term of this Agreement shall begin at the Effective Date and continue until one (1) year after the Acceptance Date. 4 2.7 RENEWAL PERIODS. The term of this Agreement shall automatically renew for successive one (I) year periods absent a written termination notice by either Party to the other no later than sixty (60) days prior to the expiration of the then-current term. Prior to the expiration of the initial term and each subsequent Renewal Period, the Parties agree to re-evaluate the amount of fees to be paid by the PT for use of the System as described in Article III. ARTICLE III FEES 3.1 FEES FOR USE OF THE SYSTEM. The PT will pay a fee of$25.00 to GTS for each foreclosure filed with the PT through the System. The PT agrees to pay GTS for certain training, technical support and other services as set forth in Exhibit B. GTS shall invoice the PT via electronic mail by the 5th of each month, and the PT agrees to pay all fees owed within fifteen (15) days of receiving an invoice. ARTICLE IV DELIVERY AND ACCEPTANCE OF SYSTEM 4.1 DELIVERY OF THE SYSTEM. GTS agrees to deliver a complete copy of the System and the other Licensed Products pursuant to the schedule detailed on Exhibit D attached hereto. As part of its delivery ofthe System, GTS will (subject to Paragraph 6.1.1) install the System on any computer in the offices of the PT on which the PT desires to have the System and provide User IDs to Authorized Users on an as-needed basis. GTS may refuse to provide a User ID to an Authorized User until it receives all correct User Information for such Authorized User. 4.2 DEMONSTRATION AND TESTING OF THE SYSTEM. 4.2.1 After GTS has completed its installation of the System on the computers in the offices of the PT, the PT shall have thirty (30) days to test and evaluate the Licensed Products by whatever means it deems appropriate consistent with this Agreement. During this demonstration period, GTS will work with the PT to create individual reports and otherwise customize the Licensed Products based on the individual preferences of the PT and within the existing functionality of the Licensed Products as set forth in the Specifications. 4.2.2 The PT has the right to terminate the Agreement for any reason during this thirty (30) day demonstration period upon written notice to GTS. 4.3 ACCEPTANCE OF THE SYSTEM. 4.3.1 The System shall be deemed accepted by the PT at the expiration of the thirty (30) day demonstration period if the PT does not provide GTS with written notice as provided under the requirements specified below in Paragraph 4.3.2 prior to the expiration of the thirty (30) day demonstration period. 5 4.3.2 If the PT believes that the System does not conform with the Specifications, the PT shall provide GTS with written notice identifying the specific reasons the System does not conform with the Specifications. Upon receipt of such notice, GTS will have fifteen (15) days to correct the identified defects and the PT will have fifteen (15) days to re-evaluate the System. The Parties will continue this process until the System complies with the Specifications and it is accepted by the PT. However, if this process continues for more than two (2) iterations, the PT shall have the right to reject the System and terminate the Agreement. If the PT does not provide GTS with written notice identifying the specific reasons the System does not conform with the Specifications by the end of a fifteen (15) day re-evaluation period, the System shall be deemed accepted by the PT. 4.3.3 If the System complies with Specifications, but has other defects or problems, the System is deemed accepted by the PT after GTS's correction of these defects pursuant to the terms of Exhibit B. 4.3.4 Any dispute between the Parties concerning whether the System complies with the Specifications shall be governed by the dispute resolution provisions in Paragraph 14.6. 4.3.5 The Acceptance Date is the date the PT accepts or is deemed to have accepted the System pursuant to this Paragraph 4.3. 4.3.6 GTS will work with the PT to convert the records of past foreclosure actions into electronic form so that such records will be accessible on the System. Parties anticipate that they will complete all data conversation within ten (10) business days after the Acceptance Date. If GTS believes that the Parties will not be able to complete all data conversion within ten (10) business days after the Acceptance Date, it shall provide the PT written notice, and the Parties shall agree on a reasonable extension to complete data conversion. 4.4 ACCESS. The Parties acknowledge that all time periods and obligations by GTS set forth in this Article IV are subject to the PT providing GTS with reasonably necessary access to any computer system owned or controlled by the PT that stores any component of the System or otherwise interacts with System, which GTS reasonably believes it must have access to in order to install the System or otherwise perform its duties under the Agreement. ARTICLE V RESPONSIBILITIES OF GTS 5.1 TRAINING, TECHNICAL SUPPORT, AND OTHER SERVICES. After the Acceptance Date and during the License Term, GTS will provide training, technical support and other services in accordance with the terms of Exhibit B. 6 5.2 REPORTING. On a monthly basis after the Acceptance Date and during the License Term, GTS will issue to the PT via electronic means a report setting forth the number of foreclosures filed with the PT through the System for the previous month. GTS will also issue to the PT via electronic means customized reports agreed upon by the Parties in writing. 5.3 INSURANCE. GTS has provided the PT with a Certificate of Liability Insurance for its Commercial General Liability Policy and Professional Liability Policy for the PT's reVIew. ARTICLE VI RESPONSIBILITIES OF THE PT 6.1 HARDWARE, SOFTWARE AND CONNECTIVITY. The PT is solely responsible for: 6.1.1 ensuring that it possesses the minimum hardware and software requirements to use the Licensed Products set forth in Exhibit C; 6.1.2 any problems or delays caused by its internet service provider in connection with its use of the Licensed Products. 6.2 USER IDS. The PT shall provide GTS with all User Information for each of its Authorized Users so that GTS can provide User IDs to the PT's Authorized Users. Once its Authorized Users obtain User IDs, the PT is solely responsible for maintaining the security and confidentiality of such User IDs. The PT shall take all reasonable efforts to ensure that Authorized Users do not disclose their User IDs to any person under any circumstances. The PT shall immediately notify GTS if (i) a User ID of an Authorized User is lost, stolen, no longer valid, has been misused, or compromised in any manner or (ii) an Authorized User is no longer an employee, contractor, or agent of the PT so that GTS can cancel, or otherwise limit access to the System from, such User ID. The PT shall also notify GTS when it hires a new employee who it desires to be an Authorized User so that GTS can obtain the necessary User Information and provide such employee with a User ID. 6.3 DATA INTEGRITY. The PT is responsible for the continuing accuracy of any and all data or information concerning the PT contained in Documents filed or served by Subscribers using the Licensed Products. The PT must notify GTS of any changes in the PT's contact information including, but not limited to, the change of address, legal name, facsimile number( s), or email address. The PT must also notify GTS of any change in the User Information of an Authorized User or any other material information known by the PT to be incorrect in a Document. THE PT UNDERSTANDS THAT FAILURE TO NOTIFY GTS OF ANY CHANGE IN THE PT'S CONTACT INFORMATION AND THE USER INFORMATION OF ITS AUTHORIZED USERS MAY RESULT IN THE INCOMPLETE FILING OR SERVICE OF DOCUMENTS BY THE LICENSED PRODUCTS. 7 6.4 SYSTEM MONITORING. The PT acknowledges that all filing and service of Documents is completed via the GTS Website and that the PT must download any Documents filed by Subscribers through the System and timely submit either an electronic receipt or rejection to the Subscriber that filed each Document. PT AGREES THAT IT IS SOLEL Y RESPONSIBLE FOR MONITORING THE SYSTEM, INCLUDING, BUT NOT LIMITED TO, ITS READY QUEUE AND EMAIL NOTIFICATIONS. FURTHER, IT IS THE SOLE RESPONSIBILITY OF THE PT TO DETERMINE IF A DOCUMENT IS COMPLETE, CORRECT, AND ACCEPT ABLE FOR FILING. 6.5 CHANGES IN RULES AND PROCEDURES OF PT. It shall remain the responsibility of the PT to notify Subscribers and the rest of the general public of any changes to its rules and procedures. Should the PT change its rules and procedures, the PT shall notify GTS within five (5) business days so that GTS may evaluate whether any changes must be made to the System, which, if any, will be governed by the change provisions in Exhibit B. ARTICLE VII CONFIDENTIALITY 7.1 CONFIDENTIAL INFORMATION. 7.1.1 The PT acknowledges that the Licensed Products and any Improvements contain proprietary information and trade secrets of GTS, which are Confidential Information of GTS. GTS Confidential Information also includes any additional information designated in writing by GTS as "Confidential." 7.1.2 GTS acknowledges that during its installation of the System and while providing training, technical support, and other services related to the System, GTS may be exposed to or acquire PT Confidential Information, which is proprietary or otherwise confidential information that the PT has designated in writing as "Confidential. " 7.1.3 The Parties jointly acknowledge that any data relating to the usage of the Licensed Products by Authorized Users or Subscribers, including, but not limited to, information relating to the identity of specific users and/or uses, is also Confidential Information. 7.2 RESTRICTIONS. Except as expressly authorized in writing by the other Party, neither the PT nor GTS shall use any Confidential Information of the other Party except as reasonably necessary to perform and exercise its rights and obligations hereunder. The Parties agree to hold the Confidential Information of the other Party in strict confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever other than as reasonably necessary to perform and exercise their rights and obligations under the terms and conditions of this Agreement. The Parties 8 agree to advise each of its employees, contractors, and agents of their obligations to keep such information confidential. 7.3 NON-CONFIDENTIAL INFOR.l\tIATION. Notwithstanding the provIsIOns of Paragraph 7.1, Confidential Information shall not include information that (i) is already known to the receiving Party without restriction on use or disclosure at the time of communication to the receiving Party; (ii) is or becomes publicly known through no wrongful act or inaction of the receiving Party; (iii) has been rightfully received from a third party authorized to make such communication, without restriction on use or disclosure; (iv) has been independently developed by the receiving Party; or (v) is required to be disclosed by the receiving Party pursuant to applicable laws or regulations or as required for defending or settling litigation. The receiving Party shall have the burden of proving the existence of the foregoing exceptions. 7.4 INJUNCTIVE RELIEF. The Parties agree that any breach of the restrictions contained in this Article will cause irreparable harm to the non-breaching Party entitling such Party to seek injunctive relief in addition to all other legal remedies. ARTICLE VIII TERMINATION 8.1 TERMINATION BY GTS. 8.1.1 GTS may terminate this Agreement for cause upon ten (10) business days written notice if (i) the PT breaches any material term of this Agreement, which the PT has not cured within such ten (10) business day notice period; (ii) the PT does not use the System for six (6) months; or (iii) GTS determines, in its sole discretion, that a Claim (as defined in Article 11.1) is legitimate and cannot be resolved through reasonable modification of the System or settlement with the third party making the Claim. 8.1.2 Notwithstanding Paragraph 8.1.1, GTS may terminate the Agreement immediately if the PT or any Authorized User violates the provisions in Paragraphs 2.2 and 2.3. 8.2 TERMINATION BY PT AFTER ACCEPTANCE OF THE SYSTEM. 8.2.1 The PT may terminate this Agreement for cause upon thirty (30) days written notice if, after the Acceptance Date, the PT discovers defects in the System that cause the System to materially deviate from the Specifications, or GTS fails to comply with its training, technical support, and other obligations set forth in Exhibit Band GTS fails to cure the defects within such thirty (30) day period. 8.2.2 The PT may terminate this Agreement immediately upon the dissolution, insolvency, or bankruptcy of GTS. 9 8.2.3 Except for breaches set forth in Paragraphs 8.2.1 and 8.2.2, the PT may terminate this Agreement for cause upon ten (10) business days written notice if GTS breaches any material term of this Agreement, which GTS has not cured within such ten (10) business day notice period. 8.2.4 The PT may terminate this Agreement, with or without cause, at the end of the initial term or at the end of any Renewal Period provided that the PT provides GTS sixty (60) days written notice prior to the end of the initial term or any such Renewal Period. Additionally the Parties acknowledge that this Agreement is subject to C.R.S. ~ 29-1-110 relating to the annual budget and appropriation. If the PT lacks the necessary budgetary funding to satisfy its payment obligations under this Agreement, the PT may terminate this Agreement based on thirty (30) days written notice after it has provided GTS will reasonable evidence of its lack of necessary budgetary funding. ARTICLE IX WARRANTIES 9.1 GTS hereby makes the following warranties to the PT. 9.1.1 GTS warrants that the System is capable of performing the functions in conformance with the Specifications under normal use, provided the PT is in compliance with its obligations under this Agreement. 9.1.2 GTS warrants that it (i) has the authority to enter into this Agreement, and (ii) has the right to license the rights granted under this Agreement to use the Licensed Products and that it has obtained any and all necessary permissions from third parties to license the Licensed Products. 9.2 The PT hereby makes the following warranties to GTS. 9.2.1 The PT warrants that it (i) has the authority to enter into this Agreement, and (ii) has obtained any necessary approvals for the execution of this Agreement and the implementation and use ofthis System by the PT. 9.3 EXCEPT AS EXPRESSLY SET FORTH IN PARAGRAPH 9.1, GTS MAKES NO REPRESENTATION OR GUARANTEES TO THE PT WHA TSOEVER AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE LICENSED PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (I) IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (II) ANY WARRANTY THAT THE LICENSED PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (III) ANY WARRANTY CONCERNING THE ACCURACY OR COMPLETENESS OF THE INFORMATION IN THE DOCUMENTS TRANSMITTED VIA THE SYSTEM OR RECORDS STORED ON THE SYSTEM, AND (IV) ANY 10 WARRANTY THAT DOCUMENTS TRANSMITTED VIA THE SYSTEM WILL BE RECEIVED OR READ BY THEIR INTENDED RECIPIENTS. ARTICLE X LIMITATIONS OF LIABILITY 10.1 EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE XI, THE TOTAL CUMULATIVE LIABILITY OF GTS (INCLUDING ITS EMPLOYEES, MEMBERS, MANAGERS, REPRESENT A TIVES AND AGENTS) TO THE PT FOR COSTS, LOSSES, OR DAMAGES FROM ALL CLAIMS, ACTIONS OR SUITS RELATED TO THIS AGREEMENT HOWSOEVER CAUSED OR ARISING SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNT OF PAYMENTS RECEIVED BY GTS FROM THE PT DURING THE PAST SIX (6) MONTHS FROM THE DATE THE CAUSE OF ACTION AROSE. IN NO EVENT SHALL GTS (INCLUDING ITS EMPLOYEES, MEMBERS, MANAGERS, REPRESENTATIVES AND AGENTS) BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, FOR LOSS OF PROFITS, LOSS OF USE OR LOSS OF DATA, HOWSOEVER CAUSED OR ARISING AND REGARDLESS OF LEGAL THEORY OR FORESEEABILITY. 10.2 GTS has no liability whatsoever to the PT for any claim based upon (i) any errors in or omissions in Data; (ii) any delays or delivery problems resulting from use of the System; (iii) the unavailability or interruption of the System or any of its features; (iv) PT's use of the System (regardless of whether PT received assistance, information or advice from the GTS Website or any GTS personnel); (v) transmission errors or any problems relating to telephone lines or other transmission devices, including the unavailability of telephone lines or other electronic transmission lines or devices; (vi) rejection of a Document by the PT; (vii) alleged defamation, libel, or slander contained in the Documents; (viii) infringement of any intellectual property rights in a Document; (ix) the content and format of a Document; (x) incorrect transmission or delivery instructions by PT or Subscriber, including, without limitation, liability for any losses in connection with the loss of privilege or for any other claimed injury or damages due to disclosure of a Document or its contents; (xi) misuse of a User ID or any other unauthorized access to the System; (xii) any alteration or destruction of a Document resulting from third parties' unauthorized access to the Licensed Products (e.g., "hacking"); (xiii) damages caused by any computer "virus" or other damaging or destructive software or software components contained in files or otherwise transmitted through the System; (xiv) filing or serving, or failure to file or serve, a Document submitted through the System; or (xv) the installation of software unrelated to the System by the PT onto its computer system that interferes with the System 10.3 GTS has the right, without any liability whatsoever to the PT, to (i) delete or modify any Document (or any portion of Document) that it suspects, at its sole discretion, contains any computer "virus" or other damaging or destructive software, (ii) immediately suspend 11 access to the System from a User ID if it suspects unauthorized use of such User ill, and (iii) take any other action GTS deems necessary, in its sole discretion, to protect the integrity and functionality of the System. If GTS takes such action, it will notify the PT as soon as reasonably possible. ARTICLE XI INDEMNIFICATION 11.1 GTS will indemnify and hold the PT harmless and will defend or settle any claim, suit or proceeding brought against the PT that is based upon a claim that the Licensed Products infringe a United States copyright or violate an intellectual or proprietary right of a third party protected by United States law ("Claim"), but only to the extent the Claim arises directly out of the use of the Licensed Products as contemplated by this Agreement. The PT shall notify GTS in writing of any Claim within ten (10) days after the PT first receives notice of the Claim, and the PT shall provide to GTS such assistance and cooperation as GTS may reasonably request from time to time in connection with the defense of the Claim. GTS shall have sole control over any Claim, including, without limitation, the selection of counsel and the right to settle on behalf of the PT on terms GTS deems desirable at its sole discretion so long as such terms are consistent with the PT's rights under this Agreement. The PT may, at its own cost, retain separate counsel and participate in the defense or settlement negotiations. GTS shall pay actual damages and costs awarded against the PT (or payable by the PT pursuant to a settlement agreement approved by GTS) in connection with a Claim. 11.2 To the extent permitted by law, the PT agrees to indemnify, defend, and hold GTS harmless from and against any and all claims and losses arising out of or in any way related to the use of the Licensed Products by the PT or any of its employees, contractors or agents, in a manner contrary to the terms and conditions of this Agreement regardless of the form of action. ARTICLE XII INFRINGEMENT 12.1 The PT agrees to notify GTS promptly of any known infringement or other misuse of the Licensed Products. Such notification shall include all details known by the PT that would enable or aid GTS to investigate such infringement and/or misuse. The PT further agrees to fully cooperate with GTS in the prosecution of any action against an accused infringer at the expense of GTS. ARTICLE XIII THIRD-P ARTY SOFTWARE 13.1 The Licensed Products may utilize software from third-party providers, including, but not limited to, software set forth in Exhibit C ("Third Party Software"). Third Party Software 12 can include sign-on and identification facilities, document transfer and conversion tools and the facilities needed to acknowledge, time stamp and forward Documents, associated data, and notifications to and from the Public Trustee as well as to other users of the System. The PT agrees to comply with the license terms and conditions of any Third Party Software used in connection with the System and that it will not alter or modify any Third Party Software without express written permission of the applicable third-party provider. The PT acknowledges that GTS has no obligation to maintain or upgrade any such Third Party Software. ARTICLE XIV MISCELLANEOUS PROVISIONS 14.1 ENTIRE AGREEMENT. This Agreement, including the Exhibits attached hereto, contain the complete and exclusive statement of the Agreement between the Parties, and supersedes all prior and contemporaneous agreements, understandings, proposals, negotiations, representations or warranties of any kind whether oral or written with respect to the subject matter hereof. No oral or written representation that is not expressly contained in this Agreement is binding on the Parties. 14.2 AMENDMENT AND WAIVER. This Agreement may not be amended, changed, or modified except by a writing signed by both GTS and the PT. Any attempt at oral modification will be void. The waiver as to one or more provisions of this Agreement shall not waive any rights or obligations of the Parties under any other provision. The waiver of any breach of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of the Agreement. 14.3 ASSIGNMENT. The PT may not assign, sublicense or otherwise transfer this Agreement or any rights or obligation herein without GTS' prior written consent, which consent shall be in GTS' sole discretion. 14.4 BINDING AGREEMENT AND SUCCESSOR LIABILITY. This Agreement shall be binding upon, and shall inure to the benefit of, the Parties, their successors and assigns with the mutual written consent of the Parties. 14.5 FORCE MAJEURE. Neither Party shall be in breach of this Agreement in the event that it is unable to perform its obligations under this Agreement as a result of interruption and delay due to causes beyond its reasonable control including, but not limited to, acts of God, acts of any government, legal restrictions, governmental regulations or orders, embargoes, blockages, war, acts of terror, or other hostility, civil disorder, riots, the elements, fire, flood, explosion, power failure, failure of equipment not under the control of either Party, transmission line or communications failure or unavailability, commercially unreasonable acts by a third party, industrial or labor dispute, strikes, industrial disturbances, inevitable accidents, inability to obtain necessary supplies or any cause beyond the control of the Party. Notwithstanding the foregoing, the Parties shall use diligent efforts to resume performance should any such event occur. 13 14.6 DISPUTE RESOLUTION. If a controversy or claim arises out of or relates to (i) this Agreement, or (ii) any services performed by or on behalf of GTS pursuant to, in accordance with, due to, in furtherance of, or in consideration of this Agreement, whether in contract, warranty, tort, (including, without limitation, negligence), strict liability or otherwise ("Dispute"), the Party that is first aware of the Dispute shall provide the written notice to the other Party. Within fifteen (15) days of both Parties becoming aware of the Dispute, the Parties shall attempt to negotiate a resolution to the Dispute. If the Parties are unable to negotiate a resolution of the Dispute within an additional fifteen (15) days, a Party may bring an action to resolve the dispute in the District Court of Arapahoe County, Colorado. 14.7 FURTHER ASSURANCES. Each Party to this Agreement agrees to execute, acknowledge, deliver, file, and record such further certificates, amendments, instruments and documents, and to do all such other acts and things, as may be required by law or as may be necessary or advisable to carry out the intent and purpose ofthis Agreement. 14.8 GOVERNING LAW. All questions with respect to the construction of this Agreement and the rights and liabilities of the Parties shall be determined in accordance with the applicable provisions of the laws of the State of Colorado, without giving effect to conflicts of law principles. 14.9 NOTICES. All notices given pursuant to this Agreement shall be in writing and shall be delivered by hand, overnight mail, electronic mail (with confirmation by u.s. mail), or facsimile (with confirmation by U.S. mail) to the addresses, facsimile numbers, or electronic mail addresses specified below. Ifto the PT: Karen Sheaffer Public Trustee Eagle County 500 Broadway Eagle, CO 81631 Ifto GTS: Michael Dietz Government Technology Systems, LLC 440 Indiana Street, Suite 150 Golden, Colorado 80401 mdietz@gov-soft.com and Will Gosnell Government Technology Systems, LLC 440 Indiana Street, Suite 150 14 Golden. Colorado 80401 wgosnell@gov-soft.com With copy to: Daniel Young Townsend and Townsend and Crew LLP 1200 17th Street, Suite 2700 Denver, Colorado 80202 dsyoung@townsend.com 14.10 SEVERABILITY. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, the invalid provision shall be considered omitted or modified to conform to applicable law and all other provisions shall remain in full force and effect. 14.11 SURVIVAL. All of GTS' rights (including indemnity rights) in this Agreement shall survive the Agreement's expiration or termination, and shall be enforceable by GTS, its successors and assigns. 14.12 MASTER AGREEMENT. The Parties acknowledge that GTS may enter into negotiations with the Public Trustees Association of Colorado ("Association") to negotiate a Master License Agreement ("Master Agreement") concerning the System. However, unless the Parties agree in writing, the Master Agreement will not replace or otherwise modify this Agreement. 14.13 TIME PERIODS. All time periods set forth in the Agreement in number of days shall be measured in calendar days unless specified otherwise. All time periods specified in business days shall exclude all weekends and all holidays observed by the PT. 14.14 COUNTERPARTS. This Agreement may be executed in several counterparts, and as executed shall constitute a single agreement, binding on both Parties, notwithstanding that both Parties are not signatory to the original or the same counterpart. GOVERNMENT TECHNOLOGY SYSTEMS, LLC By: W \'1) ~'U{( Printed Name: U/: 1\ Title: Date: EAGLE COUNTY PUBLIC TRUSTEE (-r&?;IiJt\ , By: Printed Name: Karen S ea fer Title: Public Trustee, Eagle County Date: q I ~'7-1 h t7 I I 15 EXHIBIT A SYSTEM SPECIFICATIONS The System has been designed to electronically facilitate portions of the Public Trustee foreclosure process in the State of Colorado as set forth in C.R.S. ~ 38-38-101 et seq. and other applicable state and federal laws. Specifically, the System will have at least the following functionality: 1. enable Subscribers to electronically file Documents with a Public Trustee to administer the foreclosure process and serve Documents on other parties (and/or their attorneys) who are also Subscribers; 2. enable a Public Trustee to either accept or reject Documents filed with a Public Trustee using the System (once accepted, Documents become the property of the Public Trustee and are stored on the Public Trustee's computer system(s)); 3. facilitate bi-directional flow of data and communications between a Public Trustee and the other parties to a foreclosure action (e.g., once a Public Trustee inputs the foreclosure sale date into the System, the System will transmit this information electronically through the System to the other parties to the foreclosure action who are Subscribers and by mail or email to parties who are not Subscribers); 4. calculate deadlines and basic fees for each individual foreclosure filed on the System; 5. enable Subscribers to access, view, print, and download Documents and related Public Trustee information filed with a Public Trustees using the System; 6. enable Subscribers to search select data fields for research and data recollection purposes; 7. enable a Public Trustee to electronically post public foreclosure information for access by the public on a web site designated by the Public Trustee; 8. provide reasonable protection to the System from computer viruses and other damaging or destructive software through at least the use of commercial virus detection software; and 9. allow the PT to manually enter foreclosure cases into the System. 16 EXHIBIT B TRAINING, TECHNICAL SUPPORT, AND OTHER SERVICES GTS agrees to provide training, technical support, and other services to the PT related to the System subject to the following terms: 1. TRAINING. 1.1 TRAINING DURING INITIAL TERM. After the Acceptance Date, GTS will provide certain training to Authorized Users on the use of the System free of charge. This training will consist of the following: (i) up to eight (8) hours in multiple face-to-face sessions with Authorized Users, which will include hands- on training using the System and (ii) user documentation and other written training aids for the System. During the initial term of the Agreement, GTS will provide two additional training sessions to Authorized Users up to eight (8) hours each, which may be provided in multiple sessions. These additional sessions will be over the internet or telephone or, if deemed necessary by both Parties, face-to- face. These two additional training sessions will be free of charge, but the PT will pay Travel Expenses if the training is conducted face-to-face. The PT may request additional training sessions from GTS for a fee of $125 per hour plus Travel Expenses. 1.2 TRAINING DURING RENEWAL PERIODS. During any Renewal Period, GTS will provide up to eight (8) hours in multiple training sessions to Authorized Users. This training session will be over the internet or telephone or, if deemed necessary by both Parties, face-to-face. This training session will be free of charge, but the PT will pay Travel Expenses if the training is conducted face-to- face. The PT may request additional training sessions from GTS for a mutually agree upon hourly fee plus Travel Expenses. Should the Parties be unable to agree on an hourly training fee for a Renewal Period, the hourly training fee shall be increased by three (3) percent from the hourly training fee used in the previous term. 1.3 TRAINING ON NEW VERSIONS OF SYSTEM. If GTS creates a new version of the System, GTS will provide up to four (4) hours of training in multiple sessions to Authorized Users on the new functionality of the System. This training will be over the internet or telephone or, if deemed necessary by both Parties, face-to-face. This training will be free of charge, but the PT will pay Travel Expenses if the training is conducted face-to-face. The PT may request additional training sessions from GTS related to a new version of the System for an hourly fee of $125 per hour plus any Travel Expenses during the initial term and for a mutually agreed upon hourly fee plus any Travel Expenses during a Renewal Period. Should the Parties be unable to agree on an hourly training fee for a Renewal Period, the hourly training fee shall be increased by three (3) percent from the hourly training fee used in the previous term. 17 1.4 SCHEDULING OF TRAINING. All training will be scheduled at the mutual convenience of the Parties, but no later than thirty (30) days from the date of the request for training by the PT for training over the telephone or internet or sixty (60) days for face-to-face training (except for the initial face-to-face training which will be scheduled no later than twenty (20) days after the Acceptance Date). 2. TECHNICAL SUPPORT. 2.1 GENERAL TECHNICAL SUPPORT. GTS will provide general technical support to the PT Monday through Friday, 8 a.m. MDT until 5 p.m. MDT except for state government holidays ("Normal Support Hours"). During Normal Support Hours, the PT can contact GTS with its general technical support questions through GTS' customer support telephone number or the GTS Website. GTS will respond to all non-emergency technical support questions within two (2) business day(s). If the PT has an emergency technical issue with the System, GTS will respond within one (1) business day. An emergency technical issue constitutes a failure of functionality of the System such that the System does not comply with the Specifications within the control of GTS (e.g., a problem with the System software and not a problem with the PT's internet service provider). During the initial term, GTS will provide the PT with four (4) hours of general technical support free of charge, except the PT will pay any Travel Expenses associated with such technical support. GTS will provide additional general technical support during the initial term at $125 per hour per person, billed in 1/10 of an hour increments plus any Travel Expenses. During a Renewal Period, GTS will provide general technical support for a mutually agreed upon hourly fee plus any Travel Expenses. Should the Parties be unable to agree on an hourly technical support fee for a Renewal Period, the hourly technical support fee shall be increased by three (3) percent from the hourly technical support fee used in the previous term. 2.2 CORRECTION OF DEFECTS. Ifthe System complies with the Specifications, but the PT identifies a defect in the functionality of the System, the PT shall identify such defect to GTS in writing. GTS will fix the defect within 90 days of receiving written notice of the defect free of charge. If GTS believes that the defect identified by the PT is not a deficiency with the System, GTS will explain the reason for its belief in writing to the PT within fifteen (15) business days of the PT's written notice. Any dispute between the Parties concerning whether a defect needs to be fixed by GTS, will be governed by the dispute resolution provisions in Paragraph 14.6. If a defect in the System causes the System to not possess the functionality set forth in the Specifications, the repair of this defect will be treated as an emergency technical issue and be governed by Paragraph 2.1 of this Exhibit. 18 2.3 ADDITIONAL OR DIFFERENT FUNCTIONALITY. If the PT desires to have additional or different functionality in the System from the Specifications, the PT shall submit a written request to GTS. GTS will evaluate the PT's request and determine, at its sole discretion, whether the implementation of the requested functionality is possible and whether GTS has the time and resources to develop such functionality. If GTS elects to develop the functionality, and believes such functionality will be used by all Public Trustees using the System, GTS will develop such functionality free of charge. If GTS elects to develop the functionality, but such functionality will not be used by all Public Trustees using the System, GTS will charge the PT $125 per hour per person plus any Travel Expenses during the Initial Term and a mutually agreed upon hourly fee plus any Travel Expenses during a Renewal Period. Should the Parties be unable to agree on an hourly fee for a Renewal Period, the hourly fee shall be increased by three (3) percent from the hourly fee used in the previous term. 2.4 STATUTORILY MANDATED CHANGES. GTS will provide updates to the System to accommodate statutorily mandated changes in the foreclosure process as set forth in C.R.S. ~ 38-38-101, et seq. free of charge as soon as reasonably possible. 2.5 NEW OPERATING SYSTEM. If the PT plans to install a new version of the Microsoft Windows@ operating system, the PT shall provide GTS fifteen (15) days prior written notice. Upon receipt of such notice, GTS will provide the PT with any necessary updates to make the System compatible with the new version of the Microsoft Windows@ operating system prior to, or in conjunction with, the PT's installation of such operating system free of charge. 2.6 PILOT PROJECTS. GTS may implement changes to the System from time to time through a process of requirement assessments and pilot projects. In such a case, PT agrees to cooperate with limited and reasonable testing, provide timely responses to reasonable requests for information or approvals, and promptly report any errors to GTS. 3. OTHER SERVICES. 3.1 OTHER SERVICES DURING INITIAL TERM. For any other services not set forth in the preceding paragraphs of this Exhibit and for which GTS agrees to perform, GTS will charge the PT $125 per hour per person plus any Travel Expenses during the initial term and a mutually agreed upon hourly rate plus any Travel Expenses during a Renewal Period. Should the Parties be unable to agree on an hourly fee for a Renewal Period, the hourly fee shall be increased by three (3) percent from the hourly fee used in the previous term. 3.2 SCHEDULING OF OTHER SERVICES. All services other than those set forth above will be scheduled at a date mutually agreed upon by the Parties. 19 EXHIBIT C lVlINIMUM HARDWARE AND SOFTWARE REQUIRElVIENTS In order for GTS to deliver and install the System in accordance with the terms and conditions of this Agreement, the PT must have the following minimum hardware and software to support the System: 1. Windows 2000 or higher operating system; 2. .NET Framework 1.4; 3. Microsoft Office 2003; 4. Internet Access (speed depends on volume); 5. 512 megabytes of RAM; 6. Winzip install; 7. 200 megabytes hard drive space for application; 8. 20 gigs for storage (depends on volume); 9. MS Access (2000) or SQL; 10. 1024 x 768 resolution; 11. 1.5 ghz Celeron processor; 12. CD or USB Drive; and 13. Microsoft Internet Explorer 6.0. 20 EXHIBIT D DELIVERY OF COMPLETED SYSTEM The Parties agree that GTS will begin the delivery of the system pursuant to section 4.1 on or about , 2006. 21 Board of County Commissioners County of Eagle, Colorado By: Attest: By: Teak J. Simont n Eagle County Clerk & Recorder