HomeMy WebLinkAboutC12-163 Software Maintenance Agreement and Release SOFTWARE MAINTENANCE 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
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Maintenance Agreement
(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 or incorporated by reference into this Agreement, the terms defined in this section shall be
applicable. Unless otherwise specifically provided herein, all defined terms used in the Software
License Agreement shall have the same meaning assigned thereto when used in this Agreement.
(a) Basic Maintenance Fees — the fees for Covered Maintenance Services specified in
Section 7 of this Agreement.
(b) Basic Maintenance Period — the basic maintenance period specified in Section 6 of
this Agreement.
(c) Covered Maintenance Services — includes all Conformity Maintenance Services and
all Upgrade Maintenance Services.
(d) Conformity Maintenance Services — services necessary to insure that the Software
operates in conformity with all Specifications.
(e) Critical Defect — an Error in the Software or Documentation which renders the
Software unable to perform a specification.
(f) Non - Critical Defect — any defect in the Software or Documentation other than a
Critical Defect.
(g) Online Support — the provision of diagnostic advice and assistance concerning the
use and operation of the Software via a virtual private network or similar method.
(h) Telephone Support — the provision of general information and diagnostic advice and
assistance concerning the use and operation of the Software via telephone.
(i) Upgrade Maintenance Services — all Enhancements developed by Aptitude for the
Software and related Documentation during the term of this Agreement.
(2) Agreement. This Software Maintenance Agreement (the "Agreement ") covers the
maintenance of Software licensed or delivered by Aptitude for the benefit of Licensee pursuant to that
certain concurrently effective Software License Agreement (the "Software License Agreement ")
between the parties. THIS AGREEMENT PROVIDES MAINTENANCE SERVICES ONLY WITH
RESPECT TO SOFTWARE, INCLUDING THIRD PARTY SOFTWARE, SUPPLIED BY APTITUDE TO
LICENSEE PURSUANT TO THE TERMS OF THE SOFTWARE LICENSE AGREEMENT. THIS
AGREEMENT DOES NOT PROVIDE FOR MAINTENANCE SERVICES FOR ANY THIRD PARTY
SOFTWARE NOT SUPPLIED BY APTITUDE TO LICENSEE OR FOR ANY HARDWARE. Aside from
the terms and conditions set forth herein, the parties further agree to incorporate herein, as if fully
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Maintenance Agreement
rewritten, for the following sections from the Software License Agreement: Section 10 (Protection of
Intellectual Property); Section 11 (Confidential Information); Section 14 (Indemnification), and Section
17 (Insurance).
(3) Initial Maintenance Term. The initial term ( "Initial Term ") of this Agreement shall immediately
begin with the expiration of the Warranty Period as described in the applicable Software Supplement.
Unless sooner terminated in accordance with Section 15 hereof, or unless extended in accordance with
Section 4 hereof, the term of this Agreement shall remain in effect for a period ending on the date
immediately prior to the third (3 annual anniversary date of the Maintenance Agreement Effective
Date.
(4) Automatic Renewal and Subsequent Term. Upon expiration of the Initial Term, this
Agreement shall be automatically extended for successive three (3) year periods (each such three (3)
year period referred to as a "Subsequent Term "), unless the term of this Agreement is terminated
during any such Subsequent Term in accordance with Section 15 of this Agreement.
(5) Software. This Agreement covers all Software as described in the applicable Software
Supplements attached and incorporated into the Software License Agreement.
(6) Basic Maintenance Period. The Basic Maintenance Period commences on Monday and
continues through Friday of each week (7:30 a.m. to 8:00 p.m., Eastern Time), except on the following
recognized holidays ( "Holidays "): New Year's Day, Martin Luther King Day, Presidents' Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day and the day after Thanksgiving, and Christmas
Day. Aptitude reserves the right to alter the recognized holidays.
(7) Basic Maintenance Fees. Basic Maintenance Fees during the Initial Term are set forth in
the Software Supplement. Basic Maintenance Fees become effective upon the expiration of the
Warranty Period with respect to the applicable item of Software. Basic Maintenance Fees for
subsequently ordered Software shall be the Aptitude Basic Maintenance Fees in effect and applicable
thereto at the time of delivery. Aptitude's Basic Maintenance Fees for all Software originally included in
the initial Software Supplement will not be increased during the Initial Term of this Agreement. For
each Subsequent Term, Basic Maintenance Fees may be adjusted by Aptitude annually (subject to any
written agreement of the parties with respect to a specified period of non - adjustment), effective as of
each annual anniversary date of the Maintenance Agreement Effective Date. Each such adjustment
shall not result in a decrease to the then current Basic Maintenance Fees or an increase greater than
four percent (4 %) for each annual period, provided however, the increases shall be cumulative,
including, without limitation, any annual period which includes a period of non - adjustment.
Notwithstanding anything to the contrary herein, Aptitude shall provide Maintenance to Licensee free of
charge while the warranty is in effect. The parties understand, acknowledge and agree that changes in
state law that necessitate nominal development efforts, as determined by Aptitude, are covered by the
Basic Maintenance Fee paid by Licensee. Aptitude agrees to be compliant within sixty (60) days of the
effective date of such changes, unless the parties otherwise agree to different completion date.
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Maintenance Agreement
(8) Payment of Basic Maintenance Fees.
(a) Annual Invoices. Basic Maintenance Fees shall be invoiced and paid annually in
advance. Invoices for annual Basic Maintenance Fees shall be due and payable within thirty (30) days
following receipt of invoice by Licensee.
(b) Subsequently Ordered Software. Basic Maintenance Fees for subsequently ordered
Software shall be paid annually in advance but pro -rated for the applicable annual period of this
Agreement based upon the conclusion of the Warranty Period for such subsequently ordered Software.
(c) 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 8(c).
(d) 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 Budget Law (C.R.S. § 29 -1 -101 et seq.) and the
TABOR Amendment (Colorado Constitution, Article X, Sec. 20).
(9) Covered Maintenance.
(a) General. Aptitude will provide to Licensee all required Covered Maintenance Services.
All Conformity Maintenance Services and all Online Support and Telephone Support
will be performed by Aptitude during the Basic Maintenance Period. Covered
Maintenance Services do not include the costs of accessories and expendable supplies
necessary to operate the Software, such as magnetic tape cards, optical disks, disk
packs, paper, and similar items, and such items are not provided free of charge by
Aptitude hereunder.
(b) Upgrade Maintenance Services. As a part of this Agreement, Licensee shall also have
the right to receive from Aptitude, without additional service charge, all Upgrade Maintenance Services.
Upgrade Maintenance Services include the right to receive, during the applicable Software Warranty
Period and during the term of this Agreement (except as otherwise provided in Section 9(c) hereof), all
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Maintenance Agreement
Enhancements to the Software, including all related update releases and associated Documentation.
The right to receive Upgrade Maintenance Services does not include installation of any new release for
an Enhancement or any training, and also does not include any New Product, all of which are
separately chargeable by Aptitude. Upgrade Maintenance Services will include deployment of any
upgrade(s) into Licensee's test environment using proven scripts and written instances, as well as
review of such upgrade(s) with the Licensee. Upon successful completion of the upgrade testing,
Licensee shall deploy the upgrade into Licensee's live environment utilizing the proven instructions and
scripts provided by Aptitude. During the deployment into Licensee's live environment Aptitude agrees
to be available to assist Licensee, but shall not be required or expected to direct or manage the
deployment efforts.
(c) Support of Outdated Software. Support by Aptitude of previous versions of Software will
cease ninety (90) days following the availability of a new Enhancement release; provided, however, the
foregoing time period will be extended in conjunction with any delays caused solely by Aptitude.
Failure of Licensee to install new Software Enhancement releases or any other correction or
improvement provided by Aptitude shall relieve Aptitude of responsibility for the improper operation or
any malfunction of the Software as modified by any subsequent correction or improvement, but in no
such event shall Licensee be relieved of any of its payment obligations to Aptitude hereunder, and
Aptitude shall be released thereafter from its obligation to support the Software as provided herein.
After failure to install for in excess of ninety (90) days, in order for Licensee to return to current
Software release level, Licensee must obtain a Software audit at the then current Aptitude rates.
Following any such reinstatement to current release level, Aptitude will reinstate Covered Maintenance
Services hereunder.
(d) Online Support and Telephone. Online Support and Telephone Support includes: (i)
remote diagnostics; (ii) service desk and dispatch; (iii) question and answer consulting; and, (iv) non -
chargeable user error remedies. A toll -free maintenance telephone number is provided for Telephone
Support from Aptitude's corporate offices. Remote diagnostics equipment is required at a minimum of
one Licensee location for remote support, which equipment is to be obtained by Licensee at its sole
expense.
(e) Exclusions. Covered Maintenance Services do not include any of the following: (i)
maintenance outside the agreed upon Basic Maintenance Period; and (ii) maintenance required by: (a)
operator error or improper operation or use of the Software by Licensee; (b) modifications, repairs, or
additions to the Software performed by Persons other than Aptitude, and Licensee shall notify Aptitude
of any such modifications, repair, or addition; (c) modifications, repairs, or additions to hardware or to
any software supplied by any Person other than Aptitude; (d) damage to Software by Licensee's
employees or third Persons, including, without limitation, damage caused by improper operation or use
of other software, hardware, or other equipment; (e) causes beyond the reasonable control of Aptitude,
including, without limitation, any matter described in Section 14 (Excusable Delays) of this Agreement;
(f) electrical disturbances, outages, brownouts, or similar events; (g) Aptitude's requested involvement
in determining or solving a problem with the Software and /or any other software, hardware, or
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Maintenance Agreement
equipment not covered by this Agreement; (h) damage resulting from radiation, radioactivity, ultraviolet
light, or similar agents; (i) training services other than those expressly provided for without charge
pursuant to the terms of the Software License Agreement; (j) actual travel costs, including, without
limitation, mileage, air fare, meals, lodging, and similar items, except those incurred by Aptitude in
connection with the provision of Covered Maintenance Services; (k) any New Product; (I) Software
removed or detached from the System; or, (m) modifications to the Software or to any of the
Specifications requested by Licensee.
(10) Response Times. Aptitude will use its best good faith efforts to respond within four (4) hours
(but only during the Basic Maintenance Period) of notice from Licensee of the need for Conformity
Maintenance Services or notice of a request for Online Support or Telephone Support. Any such notice
from Licensee shall, to the extent possible, identify all Critical Defects, and, in connection with the
provision of any Conformity Maintenance Service, Online Support, and /or Telephone Support, Licensee
shall, at its own expense, provide its full good faith support and cooperation with Aptitude's efforts at
resolution. Aptitude will use its best good faith efforts to correct all Critical Defects within twenty -four
(24) hours after notice from Licensee of the applicable Critical Defects. Non - Critical Defects will be
corrected, if correction is reasonably possible, before the earlier of: (a) seventy -five (75) days following
the date of next release (following notice of defect from Licensee) of an Enhancement relating to the
applicable Software component; or, (b) one (1) year following notice of defect from Licensee.
(11) Billable Call Maintenance. Any maintenance service or related service or training other
than Covered Maintenance Services will be charged pursuant to Section IV of the applicable Software
Supplement. Such rates apply to time spent performing maintenance, including travel time. The
minimum charge for billable call maintenance is one -half hour (1/2 hour). Should billable call
maintenance services require travel to the Licensee's site, Licensee will also be invoiced for actual
expenses of travel, including, without limitation, as applicable, mileage, airfare, meals, lodging, and
similar expenses; provided, however, that, in the event Licensee is a governmental agency or authority,
travel expenses shall be limited in amount by applicable federal or state statutory requirements. All
charges for billable call maintenance shall be due and payable within thirty (30) days following invoice
by Aptitude. Travel expenses must be pre- approved by Licensee in writing.
(12) Taxes. All Software maintenance 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.
(13) LIMITATION OF LIABILITY. IN NO EVENT SHALL APTITUDE BE RESPONSIBLE TO
LICENSEE UNDER THE TERMS OF THIS AGREEMENT OR OTHERWISE FOR ANY INCIDENTAL,
SPECIAL, 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 OF USE. IN NO EVENT SHALL APTITUDE'S
LIABILITY HEREUNDER WITH RESPECT TO THIS AGREEMENT IN THE AGGREGATE FOR ALL
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CLAIMS EXCEED FIFTY PERCENT (50 %) OF THE MAXIMUM BASIC MAINTENANCE FEES PAID
HEREUNDER BY LICENSEE TO APTITUDE DURING ANY ONE -YEAR PERIOD. THE LIMITATIONS
OF APTITUDE'S LIABILITY HEREUNDER SHALL APPLY REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE. LICENSEE
UNDERSTANDS THAT THE FEES CHARGED HEREUNDER BY APTITUDE SPECIFICALLY
REFLECT THE ALLOCATION OF RISK AND EXCLUSION OF DAMAGES PROVIDED FOR IN THIS
SECTION, AND THAT THE REMEDIES PROVIDED TO LICENSEE HEREUNDER ARE ADEQUATE.
APTITUDE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR EXPENSES RESULTING
FROM ANY DATA/CODE FIXES, BACKUPS, OR SQL SCRIPTS ( "FIXES ") RUN AGAINST
LICENSEE'S LIVE PRODUCTION ENVIRONMENT, 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 SUCH
FIXES.
(14) Excusable Delays. Notwithstanding any other term or provision hereof, 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.
(15) Termination.
(a) Termination at Will. During the Initial Term or any Subsequent Term of this Agreement,
neither Party may terminate the term of this Agreement for reasons other than those expressly provided
for in this Agreement; provided, however, that either Party hereto may terminate the term of this
Agreement at any time as of and effective at the conclusion of the Initial Term or any Subsequent Term
upon notice to the other Party given not later than ninety (90) days prior to the conclusion of the then
current term of this Agreement.
(b) Termination by Aptitude for Non - Payment or Upon Termination of License. Aptitude
may terminate the term of this Agreement and its obligation to provide Covered Maintenance Services
or any other service hereunder upon notice to Licensee in the event (i) Licensee fails to make any
payment when due to Aptitude after ten (10) days notice of such failure to pay from Aptitude; or, (ii) in
the event of the termination of Licensee's license of the Software. No termination pursuant to this
subsection (b) shall relieve Licensee of its payment obligations to Aptitude pursuant to the terms of this
Agreement or otherwise.
(c) Termination by Licensee. Licensee may terminate the term of this Agreement upon
notice to Aptitude in the event Licensee's license of the Software is terminated pursuant to Section 15
of the Software License Agreement.
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Maintenance Agreement
(d) Termination for Non - Appropriation. If Licensee is not allotted funds for the next
succeeding fiscal period by appropriation, appropriation limitation, grant, or other funding source
available to it for purposes of this Agreement, the Agreement shall automatically terminate at the end of
such current fiscal period for which funds have been allocated, without penalty to Licensee. Such
termination shall not constitute an event of default under any provision of this Agreement, but Licensee
shall be obligated to pay all charges incurred through the end of the current fiscal period.
(e) General Effect of Termination. No termination of the term of this Agreement shall
relieve any Party hereto of any payment obligation due and owing up through the effective date of the
termination, or shall terminate any right or remedy available to a Party as a consequence of any breach
of this Agreement prior to the effective date of termination.
(f) Termination Assistance. Upon termination of this Agreement Aptitude agrees to
reasonably cooperate with Licensee to facilitate Licensee's transition off of the Software.
(16) Aptitude Personnel.
(a) Aptitude warrants that its employees or subcontractors shall have sufficient skill,
knowledge, and training to perform all Maintenance Services and that the Services shall be performed
in a professional and workman like manner consistent with standard of care applicable to those
performing similar Maintenance Services.
(b) Aptitude shall provide for and pay the compensation of its employees and shall pay all
taxes, contributions, and benefits (such as, but not limited to, workers compensation benefits) which an
employer is required to pay relating to the employment of employees. Licensee shall not be liable to
Aptitude or its employees for Aptitude's failure to perform its compensation, benefit, or tax obligations.
(c) During the performance of the services, Licensee may reasonably request replacement
of a Aptitude employee or proposed employee.
(d) Aptitude shall retain for a period of three (3) years following the performance of services,
all records which substantiate the applicability and accuracy of charges for the services. Upon receipt of
reasonable advance notice from Licensee, Aptitude shall produce records for audit by Licensee.
Aptitude shall provide any auditors or inspectors any reasonable assistance that they may require.
(17) 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.
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Maintenance Agreement
(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) Binding upon Successors and Assigns. 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 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 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 any and other material incorporated
herein, 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,
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Maintenance Agreement
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) Title to Software Change Materials. All changes, Maintenance Modifications,
Enhancements, and other additions to the Software or any Documentation shall remain proprietary to
Aptitude, and shall be subject to all of the terms and conditions of the Software License Agreement.
(i) 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 above, 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.
(j) 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.
(k) 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 described
herein and contemplated hereby, and to carry into effect the intents and purposes of this Agreement.
(I) Independent Contractor Status. Aptitude is an independent contractor, which has the
right to supervise, manage, control and direct its performance of services. This Agreement shall not
create a partnership, joint venture, agency, or otherwise, between the respective Parties hereto.
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Maintenance Agreement
Neither Party shall hereby acquire any authority, whether actual, express, implied, or apparent, to bind
or otherwise obligate the other Party in any capacity.
(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) Fees and Costs. In the event of any litigation or mediation between the Parties in
connection with or arising out of this Agreement, or to enforce any right or obligation of either Party
under this Agreement, or for a declaratory judgment, or for the construction or interpretation of this
Agreement or any right or obligation under or impacted by this Agreement (in each case, a
"Proceeding "), the Party which substantially prevails in any such Proceeding shall be entitled to recover
from the other Party all of such prevailing Party's fees and costs therein, including, without limitation,
attorney's fees, court costs, and costs of expert witnesses and of investigation, incurred at or in
connection with any level of the Proceeding, including all appeals thereof.
(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 et
seq., as from time to time amended.
IN WITNESS WHEREOF, the Parties have hereunto set their hands, by their duly authorized
representatives.
APTITUDE SOLUTIONS, INC.
Emmanuel Ramos
President
Date:
EAGLE COUNTY, COLORADO
By and through its Board of ounty Commissioners
By: i d � w,
Peter tunyon, C
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Maintenance Agreement
6 A.�
Att: t:
Clerk to the Boari of County Comm , ' ,o
1 Y l
I I
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Maintenance Agreement
W
ACKNOWLEDGMENT AND RELEASE
I, Ear ai Gu�, on behalf of FIDLAR TECHNOLOGIES, Inc. a Michigan corporation, ( "Fidlar Technologies "),
acknowledge that Eagle County, Colorado ( "County") intends to enter into a software and license agreement with Aptitude
Solutions, Inc. for the OnCore Acclaim System to be utilized by the Eagle County Clerk and Recorder's Office. The OnCore
Acclaim System will replace the existing software provided by Fidlar Technologies. As part of the conversion to the Aptitude
OnCore Acclaim System, Eagle County and representatives of Aptitude Solutions, Inc. may see certain proprietary
information, including file layouts relative to Fidlar Technologies' software.
Fidlar Technologies hereby acknowledges, consents and agrees that Eagle County may release the necessary and detailed
information to Aptitude Solutions, Inc. solely for the purpose of facilitating the conversion of recorded data to the new
OnCore Acclaim System and to enable or allow Aptitude Solutions, Inc. to take an active and leading role in the deployment .
of the OnCore Acclaim System into County's production environment.
Notwithstanding any contracts or agreements to the contrary, Fidlar Technologies hereby waives any and all claims against
both Aptitude Solutions, Inc. and the County (i) pertaining specifically to the County's conversion from Fidlar
Technologies' software to Aptitude Solution, Inc.'s OnCore Acclaim System; and (ii) arising from or related to County and
Aptitude Solutions, Inc. access to current Fidlar Technologies operating environment which may include Fidlar
Technologies' proprietary information necessary to facilitate the conversion and deployment to the OnCore Acclaim System.
The parties hereby acknowledge, consent and agree that Aptitude Solutions, Inc. is a third party beneficiary to this
Acknowledgement and Release.
Fidlar Technologies further acknowledges that the terms herein are contractual and not a mere recital. El4zesr eh n behalf
of Fidlar Technologies acknowledges that he has carefully read the foregoing Acknowledgment and Release and knows its
contents, that he signs the instrument of his own free will, and that he has the full authority to enter into this Agreement on
behalf of the Fidlar Technologies, that this Agreement shall be construed in accordance with the laws of the State of
Colorado, and that any dispute regarding this Agreement shall be brought exclusively in Eagle County, Colorado.
Notwithstanding any contracts or agreements to the contrary, County hereby waives any and all claims against Fidlar
Technologies to the extent that such claims pertain specifically to the County's conversion from Fidlar Technologies'
software to Ap 'tud Solution, Inc.'s OnCore Acclaim System.
DATED: 7 J/ 1 Z FIDLAR TEC :1 :' •1. 1 S I C.
draft
By: 1..Z.�._—
Sign Name AY
f ��77 Print Name and Title
DATED: . 1 (' ( EAGLE COUNTY, COLORADO
By and through its Bo: ,
0 ,
ounty 4 t issioners
By:
Peter F. Runyon, Ch. : n
Attest: .`—� a'
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rk to the Board of ounty Commissio at *
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