No preview available
HomeMy WebLinkAboutC12-163 Aptitude Solutions Inc. SOFTWARE LICENSE AGREEMENT between APTITUDE SOLUTIONS, INC. ( "Aptitude ") having its principal place of business at: 851 Trafalgar Court, Suite 160 -W Maitland, Florida 32751 and EAGLE COUNTY, COLORADO ( "Licensee ") having its principal address at: 500 Broadway /P.O. Box 850 Eagle, Colorado 81631 -1- cr \ - (1) Definitions and Identifications. For all purposes of this Agreement, unless the context specifically indicates otherwise, and in addition to other terms defined only within the internal text of this Agreement, the terms defined in this Section 1 shall be applicable: (a) Agreement — this Agreement, all exhibits thereto, and any and all subsequent duly executed amendments thereto. (b) Confidential Information — Copyrights, Trade Secrets, Technical Information, Technology, and any and all other information provided by one Person ( "Discloser ") to another Person ( "Recipient ") pursuant to this Agreement or otherwise, relating to, among other items, the research, development, products, processes, business plans, customers, finances, suppliers, personnel data of or related to the business of Discloser, including, without limitation, the Software and all Documentation, and any information deemed confidential under federal or state law. Confidential Information shall also include all "non- public personal information" as defined in Title V of the Gramm - Leach - Bliley Act (15 U.S. C. Section 6801, et seq.) and the implementing regulations thereunder (collectively, the "GLB Act "), as the same may be amended from time to time. Confidential Information does not include any information: (1) Recipient knew before Discloser provided it; (2) which has become publicly known through no wrongful act of Recipient; (3) which Recipient developed independently, as evidenced by appropriate documentation; or, (4) of which Recipient becomes aware from any third Person not bound by non - disclosure obligations to Discloser and with the lawful right to disclose such information to Recipient. Notwithstanding the foregoing, specific information will not be deemed to be within the foregoing exceptions merely because it is contained within more general information otherwise subject to such exceptions. For purposes of this Agreement, "Confidential Information" shall include any third -party information provided by the Discloser to Recipient. (c) Copyrights — copyrighted and copyrightable materials, whether or not registered, published, or containing a copyright notice, in any and all media, and further including, without limitation, any and all moral rights and corresponding rights under international agreements and conventions, all Derivatives thereof, and any and all applications for registrations, registrations, and /or renewals of any of the foregoing. (d) Major Defect - a failure of Software functionality whereby a critical core function is inoperative or overall performance renders the Software inoperable and results in a significant impact to business operations. (e) Deliverables — those components, milestones, and /or materials, including, without limitation, the Software, Documentation, Maintenance Modifications, and Enhancements (including updates and /or upgrades), to be completed by one Party and delivered or otherwise provided to the other Party in accordance with the terms of this Agreement and /or an effective Maintenance Agreement. Deliverables can mean either Deliverables required from Aptitude ( "Aptitude Deliverables ") or Deliverables required from Licensee ( "Licensee Deliverables "). -2- k (f) Derivatives — any and all adaptations, enhancements, improvements, modifications, revisions, or translations, whether to Intellectual Property or otherwise. (g) Documentation — manuals, user guides, and other documentary materials for use with the Deliverables, including, without limitation, all Derivatives thereof, presently identified as Exhibits A and B, which are subject to change upon mutual agreement of the parties during the course of implementation. (h) Enhancements — changes or additions, other than Maintenance Modifications, to Software and related Documentation, including, without limitation, all new releases, that improve functions, add new functions, or significantly improve performance by changes in system design or coding that go beyond the Specifications; provided, however, that Enhancements do not include any New Product. Enhancements are included in the cost of maintenance under the Maintenance Agreement. (i) Error— (1) any error or defect resulting from an incorrect functioning of Software caused by the Software's failure to meet Functional Specification therefor; or, (2) any error or defect resulting from an incorrect or incomplete statement in Documentation caused by the failure of the Software and /or the Documentation to meet the Functional Specification therefor. (j) Specifications — the design and /or performance criteria for and qualities of the Software described in the Documentation and /or the Software Supplement, presently identified as Exhibit C, which are subject to change upon mutual agreement of the parties during the course of implementation. (k) Intellectual Property — (1) Trade Secrets, (2) Copyrights, (3) Derivatives, (4) Documentation, (5) Patents, (6) Software, (7) Technical Information, (8) Technology, and (9) any and all proprietary rights relating to any of the foregoing. (I) Licensee — the Person executing this Agreement. (m) Licensee Data — all data of Licensee, whether proprietary or non - proprietary to Licensee, converted to the System. (n) Licensee Materials — all Licensee products, Licensee Data, plans, specifications, reports, designs, documentation and other information, or any derivatives thereof, used or in any manner disclosed by Licensee in its receipt of Software and services under this Agreement. (o) Maintenance Agreement — a separate written agreement setting forth the terms and conditions under which maintenance services for the Software will be provided by Aptitude to Licensee after the expiration of the Warranty Period. -3- (p) Maintenance Modification — any modification or revision (except to the extent the same constitutes an Enhancement or a New Product) to Software or Documentation that corrects Errors, supports new releases of the operating systems with which the Software is designed to operate, supports new input/output (I /O) devices, or provides other incidental updates and corrections. Maintenance Modifications are included in the cost of maintenance under the Maintenance Agreement. (q) Material Breach — failure by a Party to perform any requirement, duty, or obligation upon it as provided for in this Agreement, other than as accepted pursuant to the provisions of Section 16 (Excusable Delays) of this Agreement. (r) New Product — any change or addition to Software and /or related Documentation that: (1) has a value or utility separate from the use of the Software and Documentation; (2) as a practical matter, may be priced and offered separately from the Software and Documentation; and, (3) is not made available to Aptitude's licensees generally without separate charge. In the event of any disagreement between the Parties with respect to whether a particular change or addition constitutes a New Product, the good faith determination of such issue by Aptitude shall be final, binding, and conclusive. (s) Nonconformity - failure, solely attributable to Aptitude, to substantially conform to the agreed description in the Documentation and /or applicable Software Supplement. (t) Parallel Test — testing that occurs through the duplication of efforts by running the Software in parallel with Client's current system pursuant to an agreed upon schedule. (u) Party— either Aptitude or Licensee, and "Parties" means both of the same. (v) Patents — all patentable materials, letters patent, and utility models, including, without limitation, all reissues, continuations, continuations -in -part, renewals, Derivatives, and extensions of any of the foregoing and all applications therefor (and patents which may issue on all such applications). (w) Person — an individual, partnership, corporation, association, joint stock company, limited liability company, trust, joint venture, unincorporated organization, or any governmental agency or authority. (x) Professional Services — services which may include but are not limited to, consulting, custom programming, data conversion, IP installation, project management, product implementation, program modifications, and training, that are listed in one or more Software Supplements executed by Licensee and Aptitude, and which Software Supplements are incorporated into and form a part of this Agreement. -4- (y) Scope of Services — the written description and specifications for the System, Software, and /or Professional Services including, without limitation, the Deliverables , and all milestone, delivery, and acceptance schedules, as described in the Software Supplement. (z) Software — includes, as applicable, all Aptitude Software and all Third Party Software supplied by Aptitude pursuant to this Agreement. Software shall include any Maintenance Modification or Enhancement thereto created by Aptitude from time to time during the Warranty Period of this Agreement and /or thereafter during the term of any effective Maintenance Agreement. The term "Software" does not include New Products except to the extent added to the Software by separate agreement of the Parties as to additional fees, terms, and conditions. (aa) Software Acceptance Date — the date of final acceptance of the System by Licensee as described in Section 4(e) of this Agreement. (ab) Software Supplement — attachments to this Agreement that describe the System, Software and /or Professional Services to be provided by Aptitude, as well as, each party's Deliverables. (ac) System — the Software system developed by Aptitude in accordance with the Scope of Services for use by Licensee and solely in the Territory pursuant to the terms and conditions of this Agreement. (ad) Taxes — all federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar taxes), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add -on minimum, estimated, or other taxes of any kind, including, without limitation, any interest, penalty, or addition thereto, whether or not disputed. (ae) Technical Information — know -how, data, and other technical information including, without limitation: (1) engineering documentation, such as development records, production software information, algorithms, flow charts, design information, drawings, specifications, and data sheets; (2) manufacturing documentation such as manufacturing drawings, instructions, specifications, procedures, methods, standards documentation, tooling and fixture drawings, process specifications and instructions; and, (3) quality and reliability documentation such as quality plans, specifications, instructions, procedures, test plans, test records and regulatory documentation; and further including any and all g ry g y a d a Intellectual Property therein or relating or referring thereto. (af) Technology — know -how, show -how, procedures, systems, processes, Trade Secrets, inventions (whether or not patentable and whether or not reduced to practice), algorithms, formulae, research and development data, manufacturing, development, and -5- production techniques, and all other proprietary information relating thereto, and further including any and all Intellectual Property therein or relating or referring thereto. (ag) Territory — the Territory shall mean the offices of the Eagle County Clerk and Recorder in Eagle County, Colorado. (ah) Test Validation Criteria — the acceptance criteria for the Aptitude Deliverables, including, without limitation, the Software, set forth in the Scope of Services, which are further detailed in the Eagle County installation workbook agreed upon by the parties, which may be amended from time to time. (ai) Third Party Software — software utilized in tandem with the Software, and necessary to enable the Software to perform in accordance with the Documentation and /or the applicable Software Supplement, supplied either by Aptitude with the Software or by Licensee independently of Aptitude. (aj) Trade Secrets — shall have the meaning set forth in applicable statutory law, if any, and, if not, as defined by applicable common law; provided, however, that, where both statutory and common law may be applicable, the broadest possible definition shall apply. (ak) Trademarks — trademarks, service marks, logos, trade names, and /or domain names including, without limitation, any and all common law and /or statutory rights therein and any and all applications to register and /or registrations therefor, anywhere within or outside of the Territory. (al) Warranty Period — the warranty period as defined in the applicable Software Supplement. (2) Agreement to License. This Agreement provides for the license of Software by Aptitude to Licensee, in accordance with the terms and conditions of this Agreement. Aptitude shall license to Licensee and Licensee shall license from Aptitude, the Software as described on the attached Software Supplement. Licensee may license additional Software hereunder by execution of a subsequent Software Supplement. (3) Fees, Installation Charges, and Taxes. (a) License Fees. The license fees for the initial items of licensed Software are set forth on the Software Supplement. Subsequent orders shall be at the fees in effect at the time of receipt by Aptitude of any applicable subsequent Software Supplement executed by Licensee and Aptitude. Fees resulting from the provision by Aptitude to Licensee of Third Party Software are passed through by Aptitude to Licensee, and, in that context, such fees payable by Licensee shall increase, and such increase shall be payable, as and to the extent of any such fee increases payable by Aptitude. -6- (b) Installation Fees. Licensee shall also pay for installation of Software at the then prevailing fees as set forth in the Software Supplement, plus any pre- approved travel expenses incurred by Aptitude, including reasonable mileage, and actual air fare, meals, lodging, and similar expenses. In the event Licensee is a governmental agency or authority, travel expenses shall be limited in amount by applicable federal or state statutory requirements. (c) Taxes. All Software license fees and all other charges payable hereunder are exclusive of federal, state, and local Taxes. Aptitude shall pay all income and gross receipts Taxes. The parties acknowledge that Licensee is a tax - exempt entity under the laws of the State of Colorado. (4) Delivery and Acceptance. (a) Delivery. Each Party shall timely perform delivery of its required Deliverables in accordance with the Software Supplement, Scope of Services, including the delivery schedule specified therein. Licensee shall pay or reimburse Aptitude for all costs of shipping Software to Licensee, including freight, insurance, and special packaging charges, if any. The carrier, method of shipment, and other matters relating to shipment shall be determined by Aptitude. Licensee is responsible for movement into or within Licensee's premises, site preparation per Aptitude requirements, and other site expenses required for installation. (b) Testing. Unless otherwise agreed to in writing, testing of Aptitude Deliverables shall be completed by Licensee in accordance with the Test Validation Criteria within ten (10) days of the Parallel Test. (c) Initial Acceptance. Unless otherwise agreed to in writing, within twenty (20) days following the Parallel Test, Licensee shall either: (i) accept the Aptitude Deliverables in writing; or, (ii) reject the Aptitude Deliverables and provide Aptitude with a statement of Errors resulting in operation not in conformance with the Test Validation Criteria. Failure by Licensee to provide the rejection and statement of errors within the twenty (20) day period provided herein shall be deemed to be acceptance by Licensee of the Aptitude Deliverables. Aptitude will correct any Error and redeliver the affected Deliverables to Licensee within thirty (30) days following receipt of the statement of Errors. Licensee shall, within ten (10) days following such redelivery, retest and accept or reject the redelivered Aptitude Deliverables in accordance with the procedures set forth herein. Failure by Licensee to provide a statement of either acceptance or Errors within ten (10) days following redelivery of the Aptitude Deliverables shall be deemed to be acceptance by Licensee of the Aptitude Deliverables. (d) Installation. Unless otherwise agreed to in writing, within thirty (30) days following acceptance of the Aptitude Deliverables, Aptitude shall install the System at the Licensee's facilities for final acceptance testing. -7- (e) Final Acceptance. Unless otherwise agreed to in writing, within ten (10) days following completion of installation and the System is put into production, Licensee shall either: (i) accept the System in writing; or, (ii) reject the System and provide Aptitude with a statement of Errors resulting in operation not in conformance with the Test Validation Criteria. Aptitude will correct any Error and redeliver the System to Licensee within thirty (30) days following receipt of the statement of Errors. Licensee shall, within ten (10) days following such redelivery, accept or reject the redelivered System in accordance with the procedures set forth herein. Failure by Licensee to provide a statement of acceptance or Errors within either of the ten (10) day periods specified herein shall be deemed to be final acceptance by Licensee of the System. Notwithstanding the foregoing, and for the avoidance of doubt, the System will be deemed accepted ninety (90) days after it is put into production, unless Aptitude encounters a Major Defect. (f) Change Orders. Aptitude uses Change Orders to control and manage application changes. Licensee may request changes to the Software Supplement by informing Aptitude, in writing, of the desired changes. Within ten (10) business days, or such additional time as may be agreed upon in writing between the parties, following receipt of this request, Aptitude shall endeavor to provide Licensee with a written response to the request. Implementation of Change Order requests shall be performed at no additional cost. The preceding notwithstanding, if the work required to review a Change Order request will result in additional cost for Aptitude, the parties shall agree in writing to Licensee's payment for the additional cost before additional work on the Change Order request is performed. This final Change Order request response shall specify the cost to effect the change expressed both in number of person hours, dollars, and delay, if any, to the Deliverable schedule. Any change, which will result in increased costs or delays must be accepted in writing by Licensee and Aptitude. Aptitude shall not initiate any such change until it receives Licensee's written acceptance. Based on the foregoing, the parties hereby agree to utilize the Change Order forms attached hereto as Exhibit "D" when carrying out any Change Order request. Further, Amanda Bay is hereby designated as Eagle County's project manager in connection with the delivery of the Services to be provided by Aptitude and is authorized to execute any change orders that modify the timing or delivery of services. (5) Payment. (a) Initial Software Supplement. Payment of Software license fees, installation fees, and other fees on the initial Software Supplement(s) will be made in installments as follows: (i) Twenty -seven Thousand, Eight Hundred Eighty Dollars ($27,880.00) of such license fees, installation fees, and other fees to Aptitude, as indicated on the initial Aptitude Software Supplement, is due at the time Licensee signs this Agreement. -8- (ii) Twenty -seven Thousand, Sixty Dollars ($27,060.00) of such license fees, installation fees, and other fees to Aptitude, plus applicable Taxes and shipping charges, if any, is due upon commencement of go live . (iii) Twenty -seven Thousand, Sixty Dollars ($27,060.00) of such license fees, installation fees, and other fees to Aptitude, plus applicable Taxes and shipping charges, if any, is dueupon final acceptance of the Software. (iv) Fees for all Third Party Software provided by Aptitude as described in the Software Supplement shall be payable at least thirty (30) days prior to due date for payment by Aptitude to Aptitude's provider. (b) Subsequent Software Supplement. Payment of license fees, installation fees, and other fees to Aptitude on any subsequent Software Supplement shall be made as specified in such subsequent Software Supplement. (c) Ancillary Charges and Out of Pocket Expenses. Notwithstanding Section 5(a) of this Agreement, all ancillary charges (e.g., additional training charges) and all actual, pre - approved out of pocket expenses of Aptitude (e.g., certain travel expenses) which are payable by Licensee hereunder shall be due and payable within thirty (30) days following invoice by Aptitude. (d) Failure of Payment. In the event payment is not made as specified in this Agreement, Licensee shall pay interest at the rate of one and one -half percent (1.5 %) per month (or the highest applicable legal rate, whichever is lower) on the outstanding overdue balance for each month or part thereof that such sum is overdue; provided, however, that if Licensee is a governmental agency or authority subject to a "Prompt Payment" or similar statutory requirement for the transaction contemplated in this Agreement, such statutory requirement shall control to the extent the same is inconsistent with the requirements of this Section 5(d). (6) Software License. (a) Background. Aptitude and /or its suppliers have designed, developed, and made available proprietary computer Software containing Trade Secrets of Aptitude and /or its suppliers. Use of this Software is strictly governed by the terms of this Agreement. No title or ownership in the Software is transferred to Licensee. The License granted hereby is for Licensee's internal use only, and only in the Territory. Licensee shall not copy or in any way duplicate the Software, except for necessary backup and archival procedures (non - printed, machine readable form) approved by Aptitude in advance, and in writing, which approval shall not be unreasonably withheld. Aptitude hereby acknowledges and authorizes Licensee's back- up process to the extent it includes its "C:drive ", which is the system upon which the Software will reside. In connection with any such permitted copy, Licensee shall reproduce and incorporate all Trade Secret and /or Copyright notices, and the same shall be subject to all of the -9- terms and conditions of this Agreement. All copies made by Licensee of the Software and any Documentation, including, without limitation, all translations, compilations, partial copies, etc., are the exclusive property of Aptitude. Software, Documentation, and all copies thereof may not be assigned, conveyed, relicensed, sublicensed, published, disclosed, displayed, or otherwise transferred (voluntarily, involuntarily, by operation of law, or otherwise) by Licensee for the benefit of a third Person. Licensee shall not permit any other Person (exclusive of Licensee's employees and necessary contractors acting in the proper scope of their services to Licensee) to use the Software, Documentation, or any copy thereof, whether in the operation of a service bureau or otherwise, or permit installation on terminals outside of Licensee's business premises. Licensee shall secure and protect the Software licensed hereunder and all copies thereof and all Documentation relating thereto in a manner consistent with the full preservation of Aptitude's rights therein, and shall take such appropriate action, by instruction or agreement, with its employees and necessary contractors as shall be reasonably requested by Aptitude in order to protect Aptitude's rights therein. Licensee shall not adapt, modify, reverse engineer, decompile, or disassemble, in whole or in part, any of the Software and /or any Documentation. Licensee is entitled to all Enhancements and /or Maintenance Modifications to the Software and Documentation as are expressly provided for in this Agreement or in any effective Maintenance Agreement between Aptitude and Licensee. Licensee is not entitled to any New Product (or other product of Aptitude) hereunder, under any Maintenance Agreement, or otherwise, except pursuant to a separate written agreement with Aptitude and separate payment therefore. (b) License. Aptitude grants Licensee a perpetual, enterprise -wide, nontransferable, revocable and nonexclusive license for use of the Software (machine readable version) and Documentation in accordance with the terms and conditions of this Agreement. Licensee shall use the Software and Documentation only within the Territory. Use of the Software and Documentation shall be limited to Licensee. (c) Source Code. The License granted in this Section 6 does not permit Licensee to use the source code for the Software. While the Warranty and the Maintenance Agreement is in effect Aptitude is willing to place the source code for the Aptitude Software in escrow with its third party escrow agent and will likewise place in escrow the source code for all Enhancements, Maintenance Modifications and New Products (as defined in this Agreement) provided to Licensee. Should Aptitude cease operations and become unable to maintain and support any of the licensed Aptitude Software, Enhancements, Maintenance Modifications or New Products provided to Licensee while under an obligation to do so, Licensee may obtain the source code for such item(s) for the sole purpose of enabling the continued use of such item(s) in accordance with this Agreement. The source code shall remain at all times the property of Aptitude and may not otherwise be used by Licensee. The cost of using an escrow agent shall be borne by Licensee. (d) Third Party Software. Licensee shall execute all documents reasonably requested by Aptitude and will abide by all reasonable requirements with respect to all Third Party Software licensed or sublicensed by Aptitude to Licensee hereunder, or necessary to the -10- performance of the Software hereunder in accordance with the Documentation, and Licensee agrees to maintain in effect all required licenses and approvals of all applicable third Persons. (7) Specifications. (a) Specifications. Aptitude shall provide guidance and assistance to Licensee and Licensee shall complete all associated tasks requested by Aptitude for the purpose of defining and approving all specifications for each of the items of Software licensed by Licensee from Aptitude hereunder. (b) Customized Software. Licensee understands that such specifications shall be defined in accordance with Aptitude standard applications and that any application and /or communication and /or functions not currently supported by Aptitude shall be considered "customized" and, as such, may incur additional costs and delivery schedules beyond those stated and agreed to by Aptitude. (8) Training. Aptitude shall provide Licensee with initial training in accordance with the Software Supplement. (9) Maintenance Services. Except as expressly provided in Section 12, maintenance services are not provided under this Agreement. Licensee shall execute a separate, governing Maintenance Agreement at the time this Agreement is executed. Separate fees regarding maintenance services will commence as specified in the Maintenance Agreement. (10) Protection of Intellectual Property. (a) Aptitude Ownership. As between Aptitude and Licensee, Aptitude shall be the sole owner of all right, title, and interest in and to the Software, the Documentation, and any and all copies or Derivatives therein or thereof, created by either Party, exclusive only of the Licensee Materials. Licensee hereby irrevocably grants, transfers, and assigns to Aptitude, without reservation, all worldwide ownership rights, title, and interest, including, without limitation, any and all Patent, Copyright, Trademark and /or Trade Secret rights, which Licensee may have or acquire, by operation of law or otherwise, in and to any or all of the Software, the Documentation, and in and to any other Intellectual Property of Aptitude, along with the good will of the business appurtenant to the use of any of the same. Licensee further hereby irrevocably transfers and assigns to Aptitude any and all moral rights Licensee may have in and to such Software, the Documentation, and in and to any other Intellectual Property of Aptitude, and hereby forever waives and agrees never to assert any moral rights it may have therein, either prior to or following the termination of the license granted pursuant to this Agreement. Licensee shall, at the request of Aptitude, execute any and all documentation necessary to formally transfer such rights to Aptitude. -11- (b) Licensee Ownership. As between Aptitude and Licensee, Licensee shall be the sole owner of all right, title, and interest in and to all Licensee Materials and Licensee represents and warrants that it has all necessary rights regarding such Licensee Materials. Aptitude hereby irrevocably grants, transfers, and assigns to Licensee, without reservation, all worldwide ownership rights, title, and interest, including, without limitation, any and all Intellectual Property rights, which Aptitude may have or acquire, by operation of law or otherwise, in and to any or all of the Licensee Materials, along with the good will of the business appurtenant to the use of any of the same. Aptitude further hereby irrevocably transfers and assigns to Licensee any and all moral rights Aptitude may have in such Licensee Materials, and hereby forever waives and agrees never to assert any moral rights it may have therein, even after termination of the license granted pursuant to this Agreement. Aptitude shall, at the request of Licensee, execute any and all documentation necessary to formally transfer such rights to Licensee. Once the Software is in production, Aptitude agrees that it shall not utilize the Licensee Data without Licensee's prior written consent, except to the extent necessary to support Licensee and its utilization of the Software. (c) Protection of Aptitude Intellectual Property. Aptitude shall have the right, but not the obligation, to file and prosecute all rights in and to any or all of its Intellectual Property, in its own name and at its own cost, within and outside of the Territory. Licensee shall cooperate with Aptitude, at the request of Aptitude, in providing any information, documentation, or other assistance to Aptitude reasonably necessary to enable Aptitude to file and prosecute any and all such rights. Licensee has no right to file or prosecute, in its own name, on behalf of Aptitude, or otherwise, any right in or to any or all of the Intellectual Property of Aptitude without the prior consent of Aptitude in each instance, which consent may be withheld in the sole and absolute discretion of Aptitude. (d) Enforcement of Aptitude Intellectual Property. Aptitude shall have the right to enforce its Intellectual Property throughout the Territory and elsewhere, in its own name, against any and all third Persons whose activities: (i) violate, infringe, unfairly compete with, or are likely to violate, infringe, or unfairly compete with any or all of the Software licensed to Licensee hereunder; or, (ii) cause, or are likely to cause, harm, injury, or damage to, Licensee or Aptitude. Licensee shall promptly notify Aptitude in writing of any such third Person violation, infringement, or unfair competition of which Licensee acquires knowledge. Aptitude shall have the right to refrain from taking any such action, if, in the determination of Aptitude, such requested action cannot be undertaken without unreasonable expense or risk to Aptitude and /or to the Software, the Documentation, and /or any other Intellectual Property right of Aptitude. Licensee shall not have the right to undertake any such action, whether at its own expense, in its own name, on behalf of Aptitude, or otherwise, without, in each instance, the prior consent of Aptitude, which consent may be withheld in the sole and absolute discretion of Aptitude. -12- (11) Confidential Information. (a) All Licensee Confidential Information shall be held in strict confidence by Aptitude, and Aptitude shall not, without Licensee's prior written consent, (a) disclose such information to any person or entity other than to Aptitude's employees or consultants legally bound to abide by the terms hereof and having a need to know such information in connection with Aptitude's performance of its obligations hereunder, or (b) use such information other than in connection with the performance of its obligations hereunder. The Aptitude understands and agrees that the unauthorized use or disclosure of Licensee Confidential Information may irreparably damage Licensee. In the event of Aptitude's breach or threatened breach of any of the provisions in this Section 11, the Licensee shall be entitled to seek an injunction from any court having appropriate jurisdiction restraining Aptitude from any unauthorized use or disclosure of Licensee Confidential Information, subject to the exceptions of paragraphs (c) and (d) below. (b) All Aptitude Confidential information shall be held in strict confidence by Licensee, and Licensee shall not, without Aptitude's prior written consent, (i) disclose such information to any person or entity other than to the Licensee employees or consultants legally bound to abide by the terms hereof and having a need to know such information in connection with the Licensee's performance of its obligations hereunder, or (ii) use such information other than in connection with the performance of its obligations hereunder. The Licensee understands and agrees that the unauthorized use or disclosure of Aptitude Confidential Information may irreparably damage Aptitude and /or its suppliers. In this event the Licensee's breach or threatened breach of any of the provisions of this Section_11, the Aptitude shall be able to seek an injunction from any court having appropriate jurisdiction restraining the Licensee from any unauthorized use or disclosure of any Aptitude Confidential Information, subject to the exceptions in Section 11(c) and (d) below. (c) Notwithstanding Section 11(a) and (b), neither Licensee Confidential Information or Aptitude Confidential Information shall include information which the recipient can demonstrate by competent written proof (a) is now, or hereafter becomes, through no act or failure to act on the part of the recipient, generally known or available or otherwise part of the public domain; (b) is rightfully known by the recipient without restriction on use prior to its first receipt of such information from the disclosing party as evidenced by its records; (c) is hereafter furnished to the recipient by a third party authorized to furnish the information to the recipient, as a matter of right and without restriction on disclosure; or (d) is the subject of a written permission by the disclosing party to disclose. (d) Notwithstanding Section11(a) and (b), disclosure of Licensee Confidential Information or Aptitude Confidential Information shall not be precluded if: (1) Such disclosure is in response to a valid court order or other governmental body of the United States or any political subdivision thereof, or pursuant to the provisions of the Colorado Open Records Act; provided however, that the -13- recipient of such confidential information shall first have given notice to the other party and allowed the other party an opportunity consistent with the timing set forth in the Colorado Open Records Act to obtain a protective order to avoid disclosure, or to require that the information to be disclosed be used only for the purposes for which the order was issued: (ii) Such disclosure is necessary to establish rights to enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary for such purpose; or (iii) The recipient of such confidential information received the prior written consent to such disclosure from the disclosing party, but only to the extent permitted in such consent. (e) Survival. The obligation of a receiving party to maintain the confidentiality of a disclosing party Confidential Information shall survive the expiration or termination of this Agreement indefinitely, unless and until: (i) such Confidential Information shall cease to be Confidential Information; or, (ii) otherwise agreed to in writing by the disclosing party. (12) Warranty, Exclusions, and Disclaimer. (a) Software Warranty. Aptitude warrants that the Software delivered hereunder shall conform to the specifications set forth in the Documentation and /or Software Supplement. Aptitude's sole obligation and responsibility to Licensee under the foregoing warranty is to remedy, at no cost to Licensee, any such Error reported to Aptitude during the Warranty Period. Notwithstanding the foregoing or any other term or provision of this Agreement, with respect to Third Party Software provided by Aptitude hereunder, Aptitude makes no warranties, but shall, to the extent legally permitted, pass through to Licensee all warranties provided by the original licensor /manufacturer. The parties agree that maintenance for the first year is included in the warranty provided by Aptitude. (b) Software Warranty Exclusions. The foregoing warranties do not apply to any of the following: (i) Damage arising from any cause beyond Aptitude's reasonable control, including, without limitation, damage due to the improper operation or use of Software by Licensee, abuse or misuse of Software other than as designed or intended, malfunctions caused by alteration or tampering, or any reason specified in Section 16 (Excusable Delays) of this Agreement. (ii) Damage resulting from movement of Software or changing the Software environment after its initial installation without Licensee providing prior written notice to Aptitude -14- and Licensee receiving certification from Aptitude that the change will not affect the performance of the Software. (iii) Malfunction or breakdown of Software due to attachment to, or addition or use of software not supplied by Aptitude with the Software, or as a result of attachment of the Software to hardware or software by anyone other than Aptitude, or as a result of hardware associated problems. (iv) Damage, malfunction, or breakdown of Software due to improper operating environment, including, without limitation, temperature, humidity, dust, or static charge. (v) Destruction or damage, in whole or in part, of Software by any Person other than Aptitude. (c) Service Warranty. Aptitude warrants to Licensee that Professional Services, as and when delivered or rendered hereunder, will conform to the description set forth in the applicable Software Supplement. Aptitude's sole liability under the foregoing warranty shall be to re- perform the services. (d) DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 12 OF THIS AGREEMENT, APTITUDE DISCLAIMS AND LICENSEE WAIVES ALL WARRANTIES ON THE SOFTWARE AND SERVICES FURNISHED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND LICENSES THE SOFTWARE "AS IS" AND "WITH ALL FAULTS." APTITUDE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR EXPENSES RESULTING FROM THE MODIFICATION OR ALTERATION OF THE SOFTWARE OR SERVICES BY LICENSEE, OR THE UNAUTHORIZED USE OF THE SOFTWARE OR SERVICES, OR FROM THE UNINTENDED AND UNFORESEEN RESULTS OBTAINED BY LICENSEE RESULTING FROM SUCH USE. LICENSEE ASSUMES TOTAL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND SERVICES TO ACHIEVE LICENSEE'S INTENDED RESULTS, AND FOR THE USE AND RESULTS OBTAINED FROM THE SOFTWARE AND /OR SERVICES. APTITUDE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE AND SERVICES WILL MEET LICENSEE'S REQUIREMENTS. (13) Limitation of Liability. IN THE EVENT APTITUDE SHALL MATERIALLY FAIL TO PERFORM ITS OBLIGATIONS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AS RENDERED IN THE JUDGMENT AND AWARD BY A COURT OF COMPETENT JURISDICTION, APTITUDE'S LIABILITY ON ANY CLAIM OR LOSS ARISING OUT OF, OR CONNECTED WITH THE SOFTWARE AND SERVICES FURNISHED HEREUNDER, SHALL IN ALL CASES BE LIMITED SOLELY TO CORRECTION OF NONCONFORMITIES WHICH DO NOT SUBSTANTIALLY CONFORM WITH THE AGREED DESCRIPTION OF THE SOFTWARE AND SERVICES IN THE APPLICABLE SOFTWARE SUPPLEMENT(S). IF FOR -15- ANY REASON APTITUDE IS UNABLE OR FAILS TO CORRECT NONCONFORMITIES, APTITUDE'S LIABILITY FOR DAMAGES ARISING OUT OF ANY SOFTWARE SUPPLEMENT FOR SUCH FAILURE, WHETHER IN CONTRACT OR TORT (INCLUDING APTITUDE'S OWN NEGLIGENCE), LAW OR EQUITY, SHALL NOT EXCEED THE AMOUNTS PAID BY LICENSEE FOR THAT PORTION OF THE SOFTWARE OR SERVICES WHICH FAIL TO CONFORM. NOTWITHSTANDING THE FOREGOING, FOR SERVICES OR OTHERWISE, APTITUDE'S LIABILITY SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY LICENSEE, PROVIDED THAT IN EACH SUCH INSTANCE, APTITUDE'S LIABILITY SHALL NOT EXCEED THE LESSER OF I) THE AMOUNT OF THE ACTUAL DIRECT MONETARY LOSS SUFFERED BY LICENSEE OR II) THE AMOUNT PAID TO APTITUDE BY LICENSEE OVER THE SIX (6) MONTHS PRECEDING SUCH INSTANCE FOR THE SOFTWARE AND /OR SERVICES FOR WHICH THE MATERIAL FAILURE OCCURRED. APTITUDE'S AGGREGATE LIABILITY SHALL NOT, IN ANY EVENT, EXCEED THE TOTAL FEES PAID BY LICENSEE TO APTITUDE FOR THE SPECIFIC SOFTWARE AND SERVICES DURING THE TWELVE (12) MONTHS PRECEDING SUCH INSTANCE FOR THE SOFTWARE AND SERVICES WHICH WERE THE SUBJECT OF THE MATERIAL FAILURE(S). IN NO EVENT SHALL APTITUDE BE RESPONSIBLE TO LICENSEE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS, AND /OR LOSS OF USE OF PRODUCT) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. (14) Indemnification. (a) Indemnification. Aptitude (the "Indemnitor ") agrees to, and shall, indemnify, defend and hold harmless Licensee (the "Indemnitee "), and its elected officials, directors, shareholders, officers, agents, employees, successors and assigns from any and all third party claims, suits, proceedings, judgments, damages, and costs (including reasonable attorneys' fees and expenses) and other liabilities arising from, in connection with or related in any way to, directly or indirectly, (i) any alleged infringement of any United States patent, copyright or trade secret by the unmodified Software as delivered by Aptitude, (ii) any negligence acts or omissions of Aptitude; or (iii) any claim arising out of worker's compensation law or arising out of the failure of Aptitude to conform to any federal, state or local law, statute, ordinance, rule, regulation or court decree; The Indemnitee shall promptly notify the Indemnitor of any such claim, and the Indemnitor shall bear full responsibility for the defense of such claim (including any settlements); provided however, that (1) the Indemnitor shall keep the Indemnitee informed of, and consult with the Indemnitee in connection with the progress of such litigation or settlement; and (2) the Indemnitor shall not have any right, without the Indemnitee's written consent, (which shall not be unreasonably withheld), to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of the Indemnitee, or requires any specific performance or non - pecuniary remedy by the Indemnitee. Aptitude shall not be responsible for any damages or expenses resulting from the implementation of the Software into Licensee's live production environment -16- ( "Live Implementation ") or any unintended or unforeseen result of the Live Implementation, including, but not limited to, loss of data or corruption of data (collectively "Damage "). Licensee assumes total liability for Damage to its system, software or data resulting from the Live Implementation. Notwithstanding the foregoing, Aptitude agrees to provide to Licensee support and guidance during installation and implementation, subject to the Licensee responsibilities set forth in the Software Supplement. (b) Aptitude Options Related to Intellectual Property Infringement Claims. In the event of any claim, suit, or proceeding subject to Section 14(a)(i) above, Aptitude shall have the right, at its sole option, to obtain the right to continue use of the affected Services, Software or Hardware or to replace or modify the affected Software so that it may be provided by Aptitude and used by Licensee without infringement of third party patent, copyright or trade secret rights. If neither of the foregoing options is available to Aptitude on a commercially reasonable basis, Aptitude may terminate the applicable Software Supplement immediately upon written notice to Licensee, and pay Licensee, within thirty (30) days after such termination, the license fee provided for in Section 3(a) of this Agreement, less: (i) three percent (3 %) thereof for each month, or part thereof, from the Software Acceptance Date to the effective date of termination; and less, (ii) all amounts paid by Aptitude to Licensee pursuant to Section 13 of this Agreement. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE RIGHTS AND REMEDIES SET FORTH IN SECTION 14 CONSTITUTE THE ENTIRE OBLIGATION OF APTITUDE AND THE EXCLUSIVE REMEDIES OF LICENSEE WITH RESPECT TO THE SUBJECT MATTER THEREOF. (c) Survival. The provisions of this Section 14 shall survive the expiration or other termination of this Agreement. (15) License Termination. Aptitude may terminate Licensee's license as granted herein if Licensee commits any Material Breach of the terms and conditions of this Agreement. Licensee may terminate its license granted herein upon written notice to Aptitude. Upon notice of termination, Licensee shall discontinue all use of the Software and shall immediately return to Aptitude all copies of the Software, all related Documentation, and all other materials which contain any Confidential Information of Aptitude in Licensee's possession or control. In such event, Licensee shall also permanently delete all copies of all such items residing in Licensee's on or off line computer memory. Similarly, Aptitude agrees to discontinue the use of any Licensee Confidential Information and either delete or return such Confidential Information to Licensee; provided, however, Aptitude shall not be required to return that which is commingled with other data on its back -up files. Aptitude shall be entitled, upon coordination with the Licensee, to enter into any location controlled by Licensee to repossess and remove all Software, Documentation, and any other Confidential Information of Aptitude, and /or to deactivate any Software. Licensee shall, within five (5) days following the effective date of termination of Licensee's license hereunder, certify in writing to Aptitude, by an executive officer of Licensee, that all copies of the Software and all Documentation, and all other materials required to be returned to Aptitude hereunder or to be deleted have been returned or deleted as -17- appropriate. Upon termination of this Agreement Aptitude agrees to reasonably cooperate with Licensee to facilitate Licensee's transition off of the Software. (16) Excusable Delays. Notwithstanding any other term or provision of this Agreement, Aptitude shall not be liable for delays in delivery, failure to deliver, or otherwise to perform any obligation hereunder when such delay or failure arises from causes beyond the reasonable control of Aptitude, including, without limitation, such causes as acts of God or public enemies, labor disputes, supplier or material shortages, embargoes, rationing, acts of local, state or national governments or public agencies, utility or communication failures, fire, flood, storms, earthquake, settling of walls or foundations, epidemics, riots, terrorism, civil commotion, strikes, or war. (17) Insurance Requirements. Aptitude and subcontractors shall procure and maintain until all of their obligations have been discharged, including any warranty periods under this Agreement are satisfied, insurance against claims for injury to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Aptitude, its agents, representatives, employees or subcontractors. The insurance requirements herein are minimum requirements for this Agreement and in no way limit the indemnity covenants contained in this Agreement. A. Minimum Scope and Limits of Insurance: Aptitude shall provide coverage with limits of liability not less than those stated below. An excess liability policy or umbrella liability policy may be used to meet the minimum liability requirements provided that the coverage is written on a "following form" basis. 1. Commercial General Liability Policy shall include bodily injury, property damage and liability assumed under an Insured Agreement including defense costs. a. The policy shall be endorsed to include the following additional insured language: Eagle County hereinafter ( "Public Entity "), its subsidiary, parent, associated and /or affiliated entities, successors, or assigns, its elected officials, trustees, employees, agents, and volunteers shall be named as additional insureds with respect to liability arising out of the activities performed by, or on behalf of the Aptitude ". -18- Minimum Limits: General Aggregate $ 1,000,000 Products /Completed Operations Aggregate $ 1,000,000 Each Occurrence Limit $ 1,000,000 Personal /Advertising Injury $ 1,000,000 2. Automobile Liability Bodily Injury and Property Damage for any owned, hired, and non -owned vehicles used in the performance of this Agreement. Minimum Limits: Bodily Injury/Property Damage (Each Accident) $ 1,000,000 3. Worker's Compensation and Employers' Liability Worker's Compensation as required by law. 4. Professional Liability (Errors and Omissions Liability) including Cyber Liability Aptitude's policy shall cover professional misconduct or lack of ordinary skill for those positions defined in the scope of work or set forth in this Agreement. In the event that the professional liability insurance required by this Agreement is written on a claims -made basis, Aptitude warrants that any retroactive date under the policy shall precede the effective date of this Agreement; and that either continuous coverage will be maintained or an extended discovery period will be exercised for a period of two (2) years beginning at the time work under this Agreement is completed. If such insurance is maintained on an occurrence form basis, Aptitude shall maintain such insurance for an additional period of one (1) year following termination of Agreement. If such insurance is maintained on a claims -made basis, Aptitude shall maintain such insurance for an additional period of three (3) years following termination of the Agreement. The insurance shall provide coverage for the following risks: a. Liability arising from theft, dissemination and / or use of confidential information (a defined term including but not limited to bank account, credit card account, -19- personal information such as name, address, social security numbers, etc. information) stored or transmitted in electronic form; b. Network Security Liability arising from the unauthorized access to, use of or tampering with computer systems including hacker attacks, inability of an authorized third party, to gain access to your services including denial of service, unless caused by a mechanical or electrical failure; c. Liability arising from the introduction of a computer virus into, or otherwise causing damage to, a customer's or third person's computer, computer system, network or similar computer related property and the data, software, and programs thereon. Minimum Limits: Per Loss $ 3,000,000 Aggregate $ 3,000,000 Crime Coverage Coverage shall include employee dishonesty, forgery or alteration and computer fraud. If Aptitude is physically located on Eagle County premises, third party fidelity coverage extension shall apply. The policy shall include coverage for all directors, officers, and employees of the Aptitude. a. The bond or policy shall include coverage for extended theft and mysterious disappearance. b. The bond or policy shall not contain a condition requiring an arrest and conviction. Limits: Per Loss $ 1,000,000 B. Additional Insurance Requirements: The policies shall include, or be endorsed to include, the following provisions: 1. On insurance policies where the Public Entity is named as an additional insured, The Public Entity shall be an additional insured to the full limits of liability purchased by the Aptitude even if those limits of liability are in excess of those required by this Agreement. 2 Aptitude's insurance coverage shall be primary insurance and non - contributory with respect to all other available sources except with respect to the sole negligence of the Additional Insured. C. Notice of Cancellation: Aptitude will provide to Eagle County thirty (30) days prior written notice of cancellation or non - renewal except when cancellation is for non - payment -20- of premium, then ten (10) days prior notice may be given. Such notice shall be sent directly to Eagle County Information and Technology Department, Post Office Box 850, Eagle, Colorado 81631. No notice is required if coverage remains continuously in force under replacement or renewal policies of an essentially similar nature. D. Acceptability of Insurers: Insurance is to be placed with insurers duly licensed or authorized to do business in the state of Colorado and with an "A.M. Best" rating of not less than A- VII. Licensee in no way warrants that the above - required minimum insurer rating is sufficient to protect the Aptitude from potential insurer insolvency. E. Verification of Coverage: Aptitude shall furnish the Licensee with certificates of insurance (ACORD form or equivalent approved by the Licensee) as required by this Agreement. The certificates for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and any required endorsements are to be received and approved by the Licensee before work commences. Each insurance policy required by this Agreement must be in effect at or prior to commencement of work under this Agreement and remain in effect for the duration of the project. Failure to maintain the insurance policies as required by this Agreement or to provide evidence of renewal is a material breach of contract. The parties acknowledge that Aptitude's insurance is renewable on an annual basis and evidence of renewal will be provided subsequent to each applicable renewal upon request. All certificates required by this Agreement shall be sent directly to Eagle County Information and Technology Department, Post Office Box 850, Eagle, Colorado 81631. Licensee reserves the right to require complete, certified copies of all insurance policies required by this Agreement at any time. F. Subcontractors: Aptitudes' certificate(s) shall include all subcontractors as additional insureds under its policies or Aptitude shall furnish to the Licensee separate certificates and endorsements for each subcontractor. Aptitude shall require that each subcontractor maintain coverage reasonable and appropriate for the services being provided. (18) Miscellaneous Provisions. (a) Materiality of Breach. Each requirement, duty, and obligation set forth herein is substantial and important to the formation of this Agreement, and, therefore, is a material term hereof. -21- (b) Governing Law; Jurisdiction. This Agreement is to be governed by and construed and enforced in accordance with the internal laws of the State of Colorado, without giving effect to the principles of conflicts of laws thereof. Each Party hereto consents to the exclusive personal jurisdiction and exclusive venue of the federal and state courts with jurisdiction in Eagle County, Colorado, for a resolution of all disputes arising out of the construction, interpretation, or enforcement of any term or provision of this Agreement, and each Party hereby waives the claim or defense that such courts constitute an inconvenient forum. By entering into this Agreement, Aptitude and county hereby expressly waive any right either party may have to a trial by jury in connection with any such dispute. Notwithstanding the foregoing, upon the demand of either party hereto, any action or proceeding seeking to enforce or to interpret any provision of this Agreement or any right or obligation, including, without limitation, any statutory obligation, of any party under or pursuant to this Agreement or arising out of Aptitude's relationship hereunder with Licensee, shall be determined first by non - binding mediation pursuant to Colorado's Dispute Resolution Act (CRS §§ 13 -22 -301 et seq). Thereafter either party may elect to pursue their available remedies, including any action to enforce or interpret any provision of this Agreement, in a court of competent jurisdiction pursuant to the above - stated venue and government law requirements. (c) Informal Disputes. In the event of any disagreement regarding the performance under or interpretation of this Agreement, the parties shall continue performance as set forth in the Agreement and shall attempt in good faith to reach a negotiated resolution by designating a representative of appropriate authority to resolve the dispute, unless Licensee has breached the Agreement for failure to pay undisputed fees. In the event the designated representatives are unable to reach agreement then upon the written request of either Party, each of the parties will appoint a designated executive whose task it will be to meet for the purpose of endeavoring to resolve such dispute and /or to negotiate an adjustment to the Agreement. Notwithstanding the foregoing, either party may, before or during the exercise of informal dispute resolution apply to the court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests pending completion of such informal resolution process. (d) Assignment. Neither this Agreement, nor any rights, duties, or obligations of either Party hereunder may be assigned or delegated in whole or in part, whether by operation of law or otherwise, without the prior written consent of the non - assigning Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, consent shall not be required for assignments in connection with mergers, acquisitions, divestitures, consolidations or corporate reorganizations by Aptitude. Subject to, and unless otherwise provided in, this Agreement, each and all of the covenants, terms, and provisions contained herein shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the Parties hereto. (e) Severability. If any provision of this Agreement shall be invalid or unenforceable, such provision shall be deemed limited by construction in scope and effect to the minimum -22- extent necessary to render the same valid and enforceable, and, in the event no such limiting construction is possible, such invalid or unenforceable provision shall be deemed severed from this Agreement without affecting the validity of any other term or provision hereof. (f) Entire Agreement. This Agreement, together with the Software Supplement, constitute the entire understanding and agreement of the Parties hereto with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements, understandings, inducements, and conditions, express or implied, written or oral, between the Parties with respect thereto. The express terms hereof control and supersede any course of performance or usage of trade inconsistent with any of the terms hereof. This Agreement may be executed in any number of counterparts, each of which shall be an original as against any Party whose signature appears thereon, and all of which together shall constitute one and the same agreement. (g) Amendment and Waivers. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a writing signed by the Party to be bound thereby. The waiver by a Party of any breach hereof or default hereunder shall not be deemed to constitute a waiver of any other breach or default. The failure of any Party to enforce any provision hereof shall not be construed as or constitute a waiver of the right of such Party thereafter to enforce such provision. (h) Notices. Whenever any Party hereto desires or is required to give any notice, demand, consent, approval, satisfaction, statement or request with respect to this Agreement, each such communication shall be in writing and shall be effective only if it is delivered by personal service (which shall include delivery by delivery service, over -night delivery service, telecopy, or telefax) or mailed, by United States certified mail, postage prepaid, and addressed to each Party at its notice address provided on the cover page of this Agreement. Such communications, when personally delivered, shall be effective upon receipt, but, if sent by certified mail in the manner set forth herein, shall be effective three (3) days following deposit in the United States mail. Any Party may change its address for such communications to another address in the United States of America by giving notice thereof to the other Party in accordance with the requirements of this section. (i) Construction of Agreement. This Agreement has been negotiated by the respective Parties hereto, and the language hereof shall not be construed for or against any Party. The titles and headings herein are for reference purposes only, and shall not in any manner limit the construction of this Agreement which shall be considered as a whole. (j) Further Assurances; Cooperation. Each Party hereto shall execute such further instruments, documents, and agreements, and shall provide such further written assurances, as may be reasonably requested by the other Party to better evidence and reflect the transactions -23- described herein and contemplated hereby, and to carry into effect the intents and purposes of this Agreement. (k) Non - Solicitation. Licensee shall not solicit the employment or services of, nor employ or otherwise retain, any employee or former employee of Aptitude who has been directly or indirectly involved in the development, licensing, installation, or support of any Aptitude software product, such bar to remain in effect for a period ending two (2) years following the latter of the: (i) date of termination of such individual's employment relationship with Aptitude or, (ii) Software Acceptance Date. (I) Independent Contractor Status. Licensee hereby retains Aptitude as an independent contractor to Licensee, and Aptitude hereby accepts such appointment. It is the intention of the Parties hereto that their relationship, as created by this Agreement, is that of an independent contractor and contractee, and this Agreement shall not create any other relationship, whether partnership, joint venture, agency, or otherwise, between the respective Parties hereto. Neither Party shall hereby acquire any authority, whether actual, express, implied, or apparent, to bind or otherwise obligate the other Party in any capacity. Aptitude shall be entitled to list Licensee in any designation of Aptitude licensees, in advertising or other published materials of Aptitude. (m) Absence of Third Party Beneficiary Rights. No provision of this Agreement is intended or shall be construed to provide or create any third party beneficiary right or any other right of any kind in any Person other than the Parties and their proper successors and assigns, and all terms and provisions hereof shall be personal solely between the Parties to this Agreement and such proper successors and assigns. (n) Effect of License Termination. No termination of the Software license granted in this Agreement shall terminate the continuing operation or effect of any other provision of this Agreement, or shall deny to any Party hereto the right to enforce any of its rights granted pursuant to this Agreement, whether such enforcement occurs prior to or following any such termination. (o) Non - waiver. The parties hereto understand and agree that the Licensee is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, as from time to time amended. (p) Notwithstanding anything to the contrary contained in this Agreement, Licensee shall have no obligations under this Agreement after, nor shall any payments be made to Aptitude in respect of any period after December 31, 2012 without an appropriation therefore by Licensee in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, Title 30 of the Colorado Revised Statutes, the Local Government -24- Budget Law (C.R.S. § 29 -1 -101 et seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). IN WITNESS WHEREOF, the Parties agree to be bound by the terms and conditions contained herein effective April 1.- , 2012. APTITUDE SOLUTIONS, INC. Emmanuel Ramos President EAGLE COUNTY, COLORADO By and through its Board of C e ty Commissioners . By: A to ►J Peter F. i n y on, ; ' Attest: Z c 1.c ire Ii NI Clerk to the Board . . County Commis -' ° NW tkile*Pc) -25-