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Home My WebLink AboutC10-059 Flightview License Agreement FLIGHTVIEW LICENSE AGREEMENT Effective as of the signing of this Agreement, FlightView Inc ("FVI"), with its principal offices at 214 Lincoln Street, Suite 213, Boston, Massachusetts 02134, and County of Eagle, State of Colorado ("County"), hereby agree as follows: 1. DEFINITIONS "Product Maintenance" means up to three (3) engineering changes to the layout or look-and-feel of the FlightView Response Pages during the initial term or any renewal term of this Agreement. These engineering changes are limited to the following changes to the FlightView Response Pages: I). change to the fonts used, ii) change to the color layout, iii) addition or deletion of the airports, airlines and flights listed, iv) addition or deletion of the cities displayed on the map, and v) change to the zoom level of any map display 2. PAYMENTS 2.1 Maintenance Charge. The County shall pay an annual Maintenance Charge of $ 550.00. 2.2 Payment -The maintenance fee is due and payable with the signing of this Agreement. The County agrees to pay FVI within thirty (30) days of the invoice being issued. Interest charges of 1 percent per month (or, if lower, the highest rate permitted by law) will accrue on all amounts not paid within thirty (30) days of receipt of the invoice. The County is a governmental entity. Accordingly, any charges and payments to be made must be pursuant to an approved budget adopted by the County in accordance with Article 25, Title 30 of the Colorado Revised Statues, the Local Government Budget Law at C.R.S. §29-1-101 et. seq., and the TABOR amendment Colorado Constitution, Article X, Sec. 20. 3. TAXES License fees are exclusive of all sales, use and like taxes. If applicable, County shall certify, and provide appropriate documentation thereof, that it is exempt from all known federal, state or local sales, use or like taxes. Any tax FVI may be required to collect or pay upon the sale, use or delivery of the Products shall be paid by the County and such sums shall be due and payable to FVI upon receipt of an invoice thereof. Any personal property taxes levied after delivery shall be paid by County. It shall be solely the County's obligation, after payment to FVI to challenge the applicability of any tax by negotiation with, or action against, the taxing authority. FVI agrees to refund any tax collected that is subsequently determined not to be proper and for which a refund has been paid to FVI by the taxing authority. 4. TERM AND TERMINATION The term of this Agreement shall begin on the Effective Date and continue for a period of one (1) year, and shall automatically renew for additional one (1) year renewal periods if neither party gives thirty (30) days notice of non-renewal to the other. FVI shall have the right to terminate this Agreement if County fails to pay any Payment (as specified in Section 2.2) and such failure continues for fifteen (15) business days after written notice of default provided by FVI to County. FVI may terminate this Agreement if it no longer has access to the ASD Data Feed. Either Party may terminate this Agreement at any time in the event of a material breach by the other Party, which remains uncured after thirty (30) days' written notice thereof. 5. CONFIDENTIALITY Each Party acknowledges and agrees that any and all information emanating from the other Party's business and not publicly known, including, without limitation, the contents of this Agreement, technical processes and formulas, source codes, names, addresses, and information about network subscribers, product designs, customer lists, sales, cost and other unpublished financial information, product plans, and marketing data, is confidential and proprietary information. Each Party agrees that it shall take reasonable steps, at least substantially equivalent to the steps as it takes to protect its own proprietary information, during the term of this Agreement, to prevent the duplication or disclosure of any such confidential and proprietary information, other than by or to its employees or agents who must have access to such information to perform such Party's obligations hereunder, who shall each treat such information as provided herein, and as may be required by either of the parties for public or private financing (provided, however, that the party seeking to disclose such information in connection with a financing shall give prior notice of such a proposed disclosure to the other Party and an explanation of why such disclosure is deemed necessary). If such information is publicly known, already known by, or in the possession of, the non-disclosing Party; is independently developed by the non-disclosing Party; is thereafter rightly obtained by the non-disclosing Party from a source other than the disclosing Party; or is required to be disclosed by law, regulation, or court order; then there shall be no restriction of the use of such information. 6. REPRESENTATIONS AND WARRANTIES 6.1. County -County represents and warrants to FVI that the Site will not infringe on any U. S. copyright, patent or any other proprietary right of any third Party. 6.2. FlightView Inc -FVI represents and warrants to County that (a) the FlightView Data do not and will not contain any content or material that infringes on or violates any applicable law or regulation, or any proprietary right of any third Party; and (b) it has the right to grant the license provided in this Agreement. 7. LIMITATION OF LIABILITY: DISCLAIMER; INDEMNIFICATION 7.1. Liability -OTHER THAN THE INDEMNIFICATION OBLIGATIONS AS PROVIDED IN SECTION 10.3 BELOW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE USE OR INABILITY TO USE THE FlightView Data, THE FLIGHTVIEW WEB SERVER, OR THE FLIGHTVIEW RESPONSE PAGES, OR ANY OTHER PROVISION OF THIS AGREEMENT SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. 7.2. No Additional Warranties -EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY THEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE FLIGHTVIEW DATA, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING COUNTY SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY OF THE SITE OR DATA STREAM. 7.3. Indemnity -Each Party will defend, indemnify, save and hold harmless the other Party and the officers, directors, agents, affiliates, distributors, franchisees and employees of the other Party from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees ("Liabilities"), 2 resulting from the indemnifying Party's breach of any material duty, representation, or warranty contained in this Agreement, except there shall be no obligation to indemnify, defend, save and hold harmless where Liabilities result from the gross negligence or knowing and willful misconduct of the other Party. 7.4. Claims -Each Party agrees to promptly notify the other Party in writing of any indemnifiable claim and give the other Party the opportunity to defend or negotiate a settlement of any such claim at such other Party's expense, and cooperate fully with the other Party, at that other Party's expense, in defending or settling such claim. 7.5 Notwithstanding anything to the contrary herein, the County's liability to FVI shall be limited to the amount owing under the current term of the Agreement. GENERAL 8.1. Amendment - No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both Parties. 8.2. Assignment -Neither this Agreement, nor any rights hereunder in whole or in part, shall be assignable or otherwise transferable by either Party, and the obligations contained in This Agreement shall survive and continue after termination of this Agreement, provided that either Party may assign or transfer this Agreement and rights and obligations hereunder to any current or future affiliates or successor County if such assignee agrees in writing to the terms and conditions herein. 8.3. Compliance with Laws -This Agreement and the Parties' actions under this Agreement shall comply with all applicable Federal, state, and local laws, rules, regulations, court orders, and governmental or regulatory agency orders. 8.4. Construction - In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any such provision is held invalid by a court with jurisdiction over the Parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law and the remainder of this Agreement shall remain in full force and effect. 8.5. Governing Law; Forum -This Agreement shall be governed by and construed and enforced in accordance with the law of the State of Massachusetts without giving effect to conflict of laws. Any dispute or controversy arising out of or involving this Agreement shall be tried exclusively in a Massachusetts state court, and each Party hereby irrevocably consents to the jurisdiction of such court. 8.6. Entire Agreement -This Agreement sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the transactions set forth herein. Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing. 8.7. Independent Contractors -The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between 3 the Parties or to impose any liability attributable to such a relationship upon either Party. 8.8. No Waiver -The failure of either Party to insist upon or enforce strict performance by the other Party of any provisions of this Agreement, or to exercise any right under this Agreement, shall not be construed as a waiver or relinquishment to any extent of such Party rights to assist or rely upon any such provision of right in that or any other instances; rather, the same shall be and remain in full force and effect. 8.9. Notice -Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and Shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed or (ii) one business day after deposit with a commercial overnight carrier, with written verification of receipt to the address of the Party to whom the same is directed as set forth below: Eagle County Airport Attn: Chris Anderson FlightView Inc. Attn: Contracts P.O. Box 850 Eagle, CO 81631 (970) 328-2680 Office 214 Lincoln St. -Suite 213 Boston, MA 02134 (617) 787 4200 8.10. Survival. Sections 2 through 8 shall survive the completion, expiration, termination or cancellation of this Agreement. ..~.* IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. EAGLE COUNTY AIRPORT FLIGHTVIEW INC. 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