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HomeMy WebLinkAboutC07-347 GartnerMaster Countv Agreement Between Gartner, Inc. and Eagle County, Colorado This Master County Agreement is between Gartner, Inc. ("Gartner") and (Eagle County, Colorado) "County", and will be supplemented by one or more Service Agreements executed by Gartner and County, the terms of which are incorporated by this reference. Each Service Agreement will set forth the specific products or service(s) (collectively the "Services") to be provided by Gartner, the contract term for such Services, and the applicable fees payable by County. This Master County Agreement will apply to all current and future Services provided by Gartner to County, or to any majority-owned affiliate of County that executes a Service Agreement. 1. (a) Term. This Master County Agreement shall apply to all incorporated Service Agreements until their expiration. Service Agreements are non -cancelable, and may be terminated only for material breach by either party, upon 30 days' prior written notice, if the breach is not cured within the notice period. In the event County breaches this Agreement by failing to pay for Services, or by exceeding its authorized usage rights to the Services, Gartner may deactivate County's access to the Services, on ten (10) days notice, until the breach is cured. County shall remain liable for all fees payable hereunder, except where Gartner breaches. (b) Modification of Services by Gartner. In order to remain current and timely in its Service offerings, upon notice Gartner may make minor modifications from time to time in the content of any Service. If Gartner discontinues any Service in its entirety, County may, at its option, receive a substitute Service, or obtain a pro rata refund of the fees paid for the discontinued Service. 2. Sales, Use or Transaction Taxes. Clause deleted. 3. Ownership of the Services. County acknowledges that the Services are owned by Gartner or its licensors and are protected by copyright and other applicable laws. Gartner reserves all rights to the Services not expressly granted to County under this Agreement. 4. Access to the Services. The Service Agreement shall set forth how many named individuals (each a "User") will have access to the Services. County is responsible for each User's compliance with this Agreement and applicable Service Agreement. County shall establish and enforce appropriate security measures to limit access to the Services to authorized Users. Subject to Section 10(a) ("Assignability"), County may not sublicense sell or assign this Agreement, or use the Services in any manner which violates this Agreement or any applicable laws. S. Use of the Services. (a) Internal Use. Users may (i) print one copy of individual research documents for their personal use, for the benefit of County; (ii) make limited copies and/or excerpts from individual research documents for internal presentations or reports to be shared with other County personnel; and (iii) circulate copies of the Services, electronic or otherwise, to other Users. (b) External Use. Users may not reproduce or distribute the Services externally without Gartner's prior written permission, except County may externally use an individual research document in its entirety if it purchases a reprint for the individual document. County may excerpt from the Services only if County obtains the prior written approval of Gartner Vendor Relations, at quote. req uests(&gartner. com Any approved external use of the Services must comply with Gartner's Copyrighted Materials - - Usage and Quote Policy which may be viewed on Gartner Vendor Relations section of gartner.com. Services may not be stored by County on any information storage and retrieval system. 6. Monitoring/Audit. County acknowledges and agrees to inform all Users that Gartner may monitor activity on Gartner'sweb site, including access to and use of the Services by individuals. Upon request, County agrees to provide Gartner with available records or other relevant evidence of compliance with this Agreement. Gartner may conduct on-site audits of County's systems and/or records to verify compliance with this Agreement, but any such audit shall be limited to an examination of those records and/or portions of County's system that are relevant to determining use of Gartner's Services. Any audit shall be conducted during County's regular business hours upon reasonable notice. County agrees to cooperate with such audits. 7. County Confidential Information. Except as required by law, Gartner agrees to keep confidential any information communicated by County to Gartner in connection with this Agreement that County desires Gartner to keep confidential provided that such material is (i) clearly marked confidential if provided in written form, or (ii) preceded by a statement that such information is confidential, if provided in oral form, and such statement is confirmed in writing. This obligation of confidence shall not apply to any information that: (1) is in the public domain at the time of its communication; (2) is independently Master County Agreement Between Gartner, Inc. and Eagle County, Colorado Page 1 of 6 developed by Gartner; (3) entered the public domain through no fault of Gartner subsequent to County's communication to Gartner; (4) is in Gartner's possession free of any obligation of confidence at the time of County's communication to Gartner; or (5) is .communicated by the County to a third party free of any obligation of confidence. Additionally, Gartner may disclose such information to the extent required by legal process. County acknowledges that Gartner is in the business of researching and analyzing information technology and this obligation of confidence shall not apply to information obtained by Gartner's research, analysis or consulting organization from sources other than the employees receiving confidential information provided under this Agreement 8. Warranties and Warranty Disclaimer. (a) Non -Infringement Warranty. Gartner warrants that the Services, in the form provided by Gartner, will not violate or infringe upon the intellectual property rights of any third party. (b) DISCLAIMER OFALL OTHER WARRANTIES. GARTNER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES AS TO ACCURACY, COMPLETENESS OR ADEQUACY OF INFORMATION. ALL SERVICES SPEAK AS OF THE PUBLICATION DATE AND GARTNER HAS NO OBLIGATION TO ADVISE COUNTY OF ANY CHANGE IN THE INFORMATION OR VIEWS CONTAINED IN THE SERVICES. THE SERVICES ARE INTENDED SOLELY AS A RESEARCH TOOL AND ARE NOT MEANT AS SPECIFIC GUIDES TO ACTION. 9. Indemnification/Liability. Gartner warrants and represents that all materials furnished by Gartner shall not infringe upon or violate any United States patent, copyright, trademark or trade secret of any third party. Gartner, at its expense, shall indemnify County and hold County harmless from any liability or expense (including reasonable attorneys' fees) arising from any claim(s) or other proceeding(s) based on a claim that any materials provided by Gartner infringes upon or violates any United States patent, copyright, trademark or trade secret of any third party. Gartner shall pay for all damages awarded against County and all County's reasonable expenses, including reasonable attorneys' fees, in any action or the settlement of any such claim. Such indemnification shall only be effective provided that County: 1) promptly notifies Gartner in writing of any such claim; 2) permits Gartner to control the defense or settlement of such claim, and 3) cooperates with Gartner in such defense or settlement. Gartner shall have no obligation under this section for any claim of infringement based on any modification of the materials by County or any third party or the unauthorized use of the materials Except for indemnification obligations with respect to third -party claims, neither party shall be liable for any consequential, indirect, special or incidental damages, such as damages for lost profits, business failure or loss arising out of use of the deliverables or the Services, whether or not advised of the possibility of such damages. Except for liability for personal injury or property damage resulting from Gartner's negligence and/or liability resulting from Gartner's infringement of intellectual property rights, in no event shall the total liability of either party under this Agreement under any theory of liability shall be limited to the fees paid by County during the preceding twelve months under the Service Agreement under which such liability arose. This limitation of liability shall not apply to claims or damages arising out of bodily injury (including death) or damage to tangible property. 10. Miscellaneous (a) Assignability. This Agreement may not be assigned by County without the written consent of Gartner, which in the case of County's merger, acquisition or other transfer of substantial ownership shall not be unreasonably withheld. Gartner may assign this Agreement to a parent, subsidiary, affiliate or successor entity by merger or acquisition. (d) Force Majeure. Except for payment obligations, nonperformance by either party shall be excused to the extent that performance is rendered impossible by strike, acts of God, governmental acts or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party. (e) Severability. To the extent necessary to render a provision valid and enforceable in that jurisdiction, a reviewing court may modify any provision of this Agreement that it finds to be invalid or unenforceable. The other provisions of this Agreement shall not be affected. Any unenforceability in a particular jurisdiction shall not affect enforceability in any other jurisdiction. Master County Agreement Between Gartner, Inc. and Eagle County, Colorado Page 2 of 6 (f) Use of Gartner Name, Trademark, and Logo. Absent the prior written consent of Gartner, the County shall not use the name, trademarks, or logo of Gartner in promotional materials, publicity releases, advertising, or any other similar publications or communications. (g) Publicity. Neither party shall use the name of the other party in any announcements, press releases or advertiseMents, or for any commercial purpose, without the prior written consent of the other, except that Gartner may identify the County by entity name in County listings. (h) No Third Party Beneficiaries. This Agreement is for the benefit of the parties only. None of the provisions of this Agreement are for the benefit of, or enforceable by, any third party. It is the intention of Gartner and County that no third party shall have the right to (i) rely on the Services provided by Gartner, or (ii) seek to impose liability on Gartner as a result of the Services. (i) Payment Terms: County acknowledges that Gartner will invoice County immediately upon implementation of all Research and Services and County shall pay in accordance with the State of Colorado Payment provision. Payments pursuant to this Agreement shall be made as earned, in whole or in part, from available funds encumbered for the purchase of the described services. Subject to incorrect payments and recoveries from Gartner due to omission, error, fraud, or defalcation, The County shall make payment in full with respect to each invoice within [forty-five (45)] days of receipt thereof: provided that the amount invoiced represents goods and/or services which have been accepted by the County and the form of the invoice is acceptable to the County. Uncontested amounts not paid by the County with the [forty-five] days shall bear interest on the unpaid balance beginning with the [forty-sixth(46)] day at a rate of one percent per month until paid in full. A liability shall not arise if a good faith dispute exists as to the County's obligation to pay all or a portion of the liability. The Contractor shall invoice the County separately for interest on delinquent amounts due. The billing shall reference the delinquent payment, the number of days interest to be paid an the applicable interest rate. (j) Alternate Disputes If a dispute arises between the parties concerning the terms and conditions of this Agreement, the parties agree to submit the dispute to their respective senior executives for resolution. If the senior executives cannot resolve the dispute, the parties agree to submit to mediation prior to initiating any judicial action. The American Arbitration Association AAA) will be consulted for the selection of the mediator. Each party will be responsible for its own costs of mediation. (k) Surviving Clauses. Sections 7, 8, 9 and 10 (b), (f) and (h) shall survive the termination of this Agreement. (1) Entire Agreement. The Colorado Special Provisions, this Agreement, together with any Service Agreements, sets forth the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes any previous agreements between the parties and shall not be effective until countersigned by Gartner. No modifications may be made except in writing signed by both parties. 11. STANDARD INSURANCE REQUIREMENTS A. The contractor shall obtain, and maintain at all times during the term of this contract, insurance in the following kinds and amounts: 1) Workers' Compensation Insurance as required by state statute, and Employer's Liability Insurance covering all of contractor's employees acting within the course and scope of their employment. 2) Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent, covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: a. $1,000,000 each occurrence; b. $1,000,000 general aggregate; c. $1,000,000 products and completed operations aggregate; and d. $50,000 any one fire. If any aggregate limit is reduced below $1,000,000 because of claims made or paid, the contractor shall immediately obtain additional insurance to restore the full aggregate limit and furnish to the County a certificate or other document satisfactory to the State showing compliance with this provision. 3) Automobile Liability Insurance covering any auto (including owned, hired and non -owned autos) with a minimum limit as follows: $1,000,000 each accident combined single limit. 4) Professional liability insurance with minimum limits of liability of not less than $500,000.00 Master County Agreement Between Gartner, Inc. and Eagle County, Colorado Page 3 of 6 B. Eagle County, CO shall be named as additional insured on the Commercial General Liability and Automobile Liability Insurance policies (leases and construction contracts will require the additional insured coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or equivalent). Coverage required of the contract will be primary over any insurance or self-insurance program carried by County. C. The Insurance shall include provisions preventing cancellation or non -renewal without at least 45 days prior notice to the County by certified mail. D. The contractor will require all insurance policies in any way related to the contract and secured and maintained by the contractor to include clauses stating that each carrier will waive all rights of recovery, under subrogation or otherwise, against the County , its agencies, institutions, organizations, officers, agents, employees and volunteers. E. All policies evidencing the insurance coverages required hereunder shall be issued by insurance companies satisfactory to the County. F. The contractor shall provide certificates showing insurance coverage required by this contract to the County within 7 business days of the effective date of the contract, but in no event later than the commencement of the services or delivery of the goods under the contract. No later than 15 days prior to the expiration date of any such coverage, the contractor shall deliver the County certificates of insurance evidencing renewals thereof. At any time during the term of this contract, the County may request in writing, and the contractor shall thereupon within 10 days supply to the County, evidence satisfactory to the County of compliance with the provisions of this section. G. Notwithstanding subsection A of this section, if the contractor is a "public entity" within the meaning of the Colorado Governmental Immunity Act CRS 24-10-101, et seq., as amended ("Act'), the contractor shall at all times during the term of this contract maintain only such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the Act. Upon request by the County, the contractor shall show proof of such insurance satisfactory to the County. 12. COLORADO SPECIAL PROVISIONS (Not for Use with Inter -Governmental Contracts) 1. BOARD OF COUNTY COMMISSIONER APPROVAL This contract shall not be deemed valid until it has been approved by the Board of Eagle County Commissioners at a duly noticed regular meeting 2. FUND AVAILABILITY. CRS 24-30-202 (5.5) Financial obligations of the County of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available 3. INDEMNIFICATION. The Contractor shall indemnify, save, and hold harmless the County, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract. 4. INDEPENDENT CONTRACTOR. THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE. NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE COUNTY. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE COUNTY PURSUANT TO THIS CONTRACT. CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE COUNTY DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. CONTRACTOR SHALL HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO Master County Agreement Between Gartner, Inc. and Eagle County, Colorado Page 4 of 6 BIND THE COUNTY TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONTRACTOR SHALL PROVIDE AND KEEP IN FORCE WORKERS' COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BY THE COUNTY) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR, ITS EMPLOYEES AND AGENTS. 5. NON-DISCRIMINATION. The contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair employment practices. 6. CHOICE OF LAW. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this contract. Any provision of this contract, whether or not incorporated herein by reference, which provides for arbitration by any extra judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and State laws, rules, and regulations that have been or may hereafter be established. 7. SOFTWARE PIRACY PROHIBITION No State or other public funds payable under this Contract shall be used for the acquisition, operation, or maintenance of computer software in violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that, for the term of this Contract and any extensions, the Contractor has in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that the Contractor is in violation of this paragraph, the State may exercise any remedy available at law or equity or under this Contract, including, without limitation, immediate termination of the Contract and any remedy consistent with United States copyright laws or applicable licensing restrictions. 8. ILLEGAL ALIENS — PUBLIC CONTRACTS FOR SERVICES. CRS 8-17.5-101 and 24-76.5-101 The Contractor certifies that the Contractor shall comply with the provisions of CRS 8-17.5-101 et seq. The Contractor shall not knowingly employ or contract with an illegal alien to perform work under this contract or enter into a, contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this contract. The Contractor represents, warrants, and agrees that it (i) has verified that it does not employ any illegal aliens, through participation in the Basic Pilot Employment Verification Program administered by the Social Security Administration and Department of Homeland Security, and (ii) otherwise will comply with the requirements of CRS 8-17.5-102(2)(b). The Contractor shall comply with all reasonable requests made in the course of an investigation under CRS 8-17.5-102 by the Colorado Department of Labor and Employment. If the Contractor fails to comply with any requirement of this provision or CRS 8-17.5-101 et seq., the County may terminate this contract for breach and the Contractor shall be liable for actual and consequential damages to the County. A Contractor that operates as a sole proprietor hereby swears or affirms under penalty of perjury that the Contractor (i) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of CRS 24-76.5-101 et seq, and (iii) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Contract. Except where exempted by federal law and except as provided in CRS 24-76.5-103(3), a Contractor that receives federal or state funds under this contract must confirm that any individual natural person eighteen years of age or older is lawfully present in the United States pursuant to CRS 24-76.5-103(4) if such individual applies for public benefits provided under this contract. Master County Agreement Between Gartner, Inc. and Eagle County, Colorado Page 5 of 6 CONTRACTOR: GARTNER, INC By: SjLDirector, Government C ra _04-3099750 Social Security Number or FEIN BOARD OF COUNTY COMMISSIONERS, EAGLE COUNTY,COLORADO- LiBy: Ar _Refer to Attached Corporate Certificate of Authority_ Signature of Authorized Officer Attest: Master County Agreement Between Gartner, Inc. and Eagle County, Colorado Page 6 of 6 CERTIFICATE OF AUTHORITY I, Clare A. Kretzman, the undersigned, hereby certify that I am the Group Vice President, Associate General Counsel and Assistant Secretary of Gartner, Inc., a Delaware corporation (the "Corporation"), and that William F. Mohan, Jr., in his capacity as Senior Director, Government and Higher Education Contracts of Gartner, Inc. is hereby authorized by the Corporation's Delegation of Authority to sign contracts or amendments to contracts in the ordinary course of business with public sector clients on behalf of the Corporation. I do further certify that the Delegation of Authority has not been revoked and is now in full force and effect. Dated this 6t" day of June, 2007. GARTNER, INC. Clare A. Kretzman GVP, Associate General Counsel and Assistant Secretary Subscribed and sworn to before me on this 6t" day of June, 2007. � r i Notary Public My commission expires: 're h;