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HomeMy WebLinkAboutC12-299 x20 MediaV AGREEMENT BETWEEN EAGLE COUNTY, COLORADO and X20 MEDIA, INC. This Agreement (" Agreement") dated as ofthis, 0, day of f j ist 2012, is between the County of Eagle, State of Colorado, a body corporate and p by and through its Board of County Commissioners ( "County "), and X20 Media, 147 Saint Paul St West, Suite 300, Montreal (Quebec) Canada H2Y 1Z5 ( "Vendor "). WHEREAS, the County is in need of a company to provide the software and software services outlined in Section 1.1 hereunder; and WHEREAS, Vendor has represented that it has the technology, experience and knowledge in the subject matter necessary to provide the software and carry out the services outlined in Section 1.1 hereunder; and WHEREAS, County wishes to hire Vendor to supply the software and perform the services outlined in Section 1.1 hereunder; and WHEREAS, County and Vendor intend by this Agreement to set forth the scope of the responsibilities of the Vendor in connection with the services and related tents and conditions to govern the relationship between Vendor and County in connection with the services. Agreement Therefore, based upon the representations by Vendor set forth in the foregoing recitals, for good and valuable consideration, including the promises set forth herein, the parties agree to the following: 1. Software and Services Provided: 1.1 The Vendor will provide the software and related software services as more particularly set forth in the attached Exhibit "A," (hereinafter "Work ") incorporated herein by reference. The Work is generally described as providing software (and related software support, updates and maintenance) that is the same or substantially similar to the version previously reviewed by the Public Trustee with functionality that will allow members of the public to access and review certain Public Trustee data. 1.2 County shall have the right to inspect the software prior to acceptance. Inspection and acceptance shall not be unreasonably delayed or refused. In the event County does not accept the software, then Vendor shall upon County's request and at no charge or cost to County replace the software with software that performs in a substantially similar manner to the version previously reviewed by the Public Trustee. 1.3 Vendor shall deliver the software and complete the installation for fmal acceptance by the County no later than thirty (30) days from the date this Agreement is fully executed by both parties. 1 1 1.4 It is possible that County will utilize Vendor for other services on an as- needed basis. Any such additional services will be through a signed written amendment to this Agreement. Vendor shall not perform any additional services without an executed amendment. Such amendment will set forth the scope of work for the additional services. Except as may be expressly altered by the amendment, all terms and conditions of this Agreement shall control. To the extent the terms and conditions of this Agreement may conflict with Exhibit "A" or any future exhibits or amendments, the terms and conditions of this Agreement shall control. 1.5 Vendor has given the County a proposal for performing the Services and represented that it has the expertise and personnel necessary to properly and timely perform the Services. 2. Perin of Agreement 2.1 This Agreement shall commence on the agreement date and, subject to the provisions of Section 2.2 hereof, shall continue in full force and effect for a period of 1 year commencing with the effective date of this Agreement. This Agreement may be extended beyond the time referred to in this Section 2.1 on terms and conditions as may be mutually agreed between the parties hereto. 2.2 In the event Vendor fails to deliver the software or services to County within thirty (30) days of the date agreed upon in Paragraph 1.3 herein, the County's sole remedy will be to terminate this Agreement. In such case, Vendor will refund any deposits made for products and/or services. Such refund will only be sent when County provides proof that any permanent licenses have been removed from hardware and County confirms that any graphical elements or video elements created by Vendor are not going to be used on any other system. 3.Independent Contractor: 3.1 With respect to the provision of the services hereunder, Vendor acknowledges that Vendor is an independent contractor providing services to the County. Nothing in this Agreement shall be deemed to make Vendor an agent, employee, partner or representative of County. 3.2 The Vendor shall not have the authority to, and will not make any commitments or enter into any agreement with any party on behalf of County without the written consent of the Board of County Commissioners. 3.3 The Vendor will maintain workman's compensation and unemployment insurance as required by law. 4. Remuneration: 4.1 For the software and services provided hereunder, County shall pay to the Vendor the installment amounts as set forth in the attached Exhibit "A." Specifically, County will pay to Vendor $2,514 upon execution of this Agreement by both parties, $2,011.20 upon complete installation of the software, and $502.80 upon completion of installation and set- up and acceptance of the same by County. Vendor will thereafter provide all maintenance, 2 minor updates and support for a period of one year from the date of this Agreement. 4.2 Fees for any additional services will be as set forth in an executed addendum between the parties. Fees will be paid within thirty (30) days of receipt of a proper and accurate invoice from Vendor respecting Consulting Services. The invoice shall include a description of services performed. Uponppon re uest, Vendor shall provide County with suchqPY other supporting information as County may request. 4.3 County will not withhold any taxes from monies paid to the Vendor hereunder and Vendor agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. 4.4 Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to the County nor shall any payment be made to the Vendor in excess of the amount for any work done without the written approval in accordance with a budget adopted by the Board in accordance with provisions of the Colorado Revised Statutes. Moreover, the parties agree that the County is a governmental entity and that all obligations beyond the current fiscal year are subject to funds being budgeted and appropriated. 5. Ownership of Documents and Intellectual Property Rights 5.1 Upon payment of the amount specified herein, County shall become the owner of the software data and have the right to use the software data for as long as it desires. County will retain ownership of all Public Trustee data used in connection with the software. All documents (including electronic files) which are obtained during or prepared, either partially or wholly, in the performance of the Services shall remain the property of the County and are to be delivered to County before final payment is made to Vendor or upon earlier termination of this Agreement. 5.2 All ownership rights and Intellectual Property Rights in and to the software and services under this Agreement shall belong to Vendor unless expressly stipulated in writing by Vendor that title has passed to County. 5.3 County hereby acknowledges that the software and services identified herein are proprietary to Vendor; and that the software and services, including the algorithms contained therein, constitute trade secrets of Vendor. Unless otherwise required by law, county shall not sell, transfer, disclose, display or otherwise make available any software or services or copies or portions thereof or any information that the County knows or has reason to know is confidential information of Vendor, including without limitation information relating to the current, future or proposed products of X2O, designs, technical information, business plans, trade secrets, business forecasts, strategies, budgets, prices, costs, financial statements, research, sales and distribution arrangements of X2) or any material containing such information to any other entity or third party except as permitted under this Agreement and after having obtained a signed confidentiality agreement from such entity or third -party. Customer agrees to secure and protect the confidentiality of the software and services so as to maintain the proprietary rights of X20 therein, including without limitation by giving appropriate instructions to and obtaining sufficient agreements with its employees. 3 6. Indenmificatiion: Within the limits allowed by law, Vendor shall indemnify County for, and hold and defend the County and its officials, boards, officers, principals and employees harmless from, all costs, claims and expenses, including reasonable attorney's fees, arising from claims of any nature whatsoever made by any person in connection with the negligent acts or omissions of, or presentations by, the Vendor. This indemnification shall not apply to claims by third parties against the County to the extent that the County is liable to such third party for such claim without regard to the involvement of the Vendor. 7. Vendor's Representations and Warranties: 7.1 Vendor shall be responsible for the completeness and accuracy of the software and related services, including all supporting data and other documents prepared or compiled in performance of the services, and shall correct, at its sole expense, all significant errors and omissions therein. Vendor shall perform the services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to Vendors, with respect to similar services, in this area at this time. 7.2 In addition to any specific guarantees required by this Agreement and any other documents related to this Agreement, Vendor promises the software will perform as specified and guarantees the software against material defects for a period of one (1) year from date the Work is completed, or such longer period as may be provided by law or as may be included in the plans and specifications S No Assignment The parties to this Agreement recognize that the services to be provided pursuant to this Agreement are professional in nature and that in entering into this Agreement County is relying upon the professional services and reputation of Vendor and its approved subcontractors. Therefore, neither Vendor nor its subcontractors may assign its interest in this Agreement or in its subcontract, including the assignment of any rights or delegation of any obligations provided therein, without the prior written consent of County, which consent County may withhold in its sole discretion, except in the event of a sale of the Vendor. Except as so provided, this Agreement shall be binding on and inure to the benefit of the parties hereto, and their respective successors and assigns, and shall not be deemed to be for the benefit of or enforceable by any third party. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Agreement. 9. Notices: 9.1 Any notice and all written communications required under this Agreement shall be given in writing by personal delivery, facsimile or U.S. Mail to the other party at the following addresses: a)Eagle County Innovation and Technology Director 500 Broadway PO 4 Box 850 Eagle, CO 81631 Telephone: 970- 328 -3581 Facsimile: 970 - 328 -3599 with a copy to: Eagle County Attorney's Office 500 Broadway PO Box 850 Eagle, CO 81631 b) X20 Media 147 Saint Paul St West, Suite 300 Montreal (Quebec), Canada H2Y 1Z5 9.2 Notices shall be deemed given on the date of delivery; on the date the facsimile is transmitted and confirmed received or, iftransmitted after normal business hours, on the next business day after transmission, provided that a paper copy is mailed the same date; or three days after the date of deposit, first class postage prepaid, in an official depository of the U.S. Postal Service. 10. Jurisdiction and Confidentiality: 10.1 This Agreement shall be interpreted in accordance with the laws of the State of Colorado and the parties hereby agree to submit to the jurisdiction of the courts thereof. Venue shall be in the Fifth Judicial District for the State of Colorado. 10.2 The Vendor and County acknowledge that, during the term of this Agreement and in the course of the Vendor rendering the Consulting Services, the Vendor and County may acquire knowledge of the business operations of the other party not generally known deemed confidential. The parties shall not disclose, use, publish or otherwise reveal, either directly or through another, to any person, firm or corporation, any such confidential knowledge or information and shall retain all knowledge and information which he has acquired as the result of this Agreement in trust in a fiduciary capacity for the sole benefit of the other party during the term of this Agreement, and for a period of five (5) years following termination of this Agreement. Any such information must marked as confidential. The parties recognize that the County is subject to the Colorado Open Records Act and nothing herein shall preclude a release of information that is subject to the same. 11. Miscellaneous: 1L1 This Agreement constitutes the entire Agreement between the parties related to its subject matter. It supersedes all prior proposals, agreements and understandings. 11.2 This Agreement is personal to the Vendor and may not be assigned by Vendor. 11.3 This Agreement does not and shall not be deemed to confer upon or grant to any third 5