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HomeMy WebLinkAbout10698RESOLUTION NO. 10698 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND INFORMATION TECHNOLOGY EXPERTS (ITX), IN THE AMOUNT OF $45,050, FOR PROFESSIONAL SERVICES TO DEVELOP AND PROVIDE SOFTWARE FOR PROCESSING AND TRACKING SALES TAX PAYMENTS AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1. The Agreement between the City of Pueblo and Information Technology Experts (ITX), for developing and providing software for processing and tracking sales tax payments, a copy of which is attached hereto and incorporated herein, having been approved as to form by the City Attorney, is hereby approved. The President of Council is hereby directed and authorized to execute the Agreement in the name and on behalf of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 2. Funds in the amount of $45,050.00 for this project will be expended from project CP0511, Sales Tax Software. SECTION 3. The President of the City Council is hereby authorized to execute the said Agreement on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. INTRODUCED April 24, 2006 BY Gilbert Ortiz Councilperson /�� "�" APPROVED: �C atx v VICE FFRESIDLINTof City Council ATTESTED BY: CITY CLERK 'i P - 1 r--- I ' mm� Background Paper for Proposed Resolution AGENDA ITEM # DATE: APRIL 24, 2006 DEPARTMENT: INFORMATION TECHNOLOGY DEPARTMENT /JOHN WILKINSON TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND INFORMATION TECHNOLOGY EXPERTS (ITX), IN THE AMOUNT OF $45,050, FOR PROFESSIONAL SERVICES TO DEVELOP AND PROVIDE SOFTWARE FOR PROCESSING AND TRACKING SALES TAX PAYMENTS AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should City Council approve an Agreement for Professional Services with Information Technology Experts (ITX) for developing and providing software for processing and tracking sales tax payments? Approve the Resolution. BACKGROUND The City has requested and received a proposal from Information Technology Experts (ITX) to provide new software for the Sales Tax Department. Technical support for the software currently in use for processing sales tax is not available, and changes or corrections to that software cannot be made. Information Technology Experts (ITX) will provide software that will allow the Sales Tax Department to provide tax return information to sales tax payers and record and process sales tax payments. Long term history and trends of sales tax accounts will be available, as will more effective tools for auditing sales tax activity. The sales tax software will be customized to fit the current needs of the Sales Tax Department, and the City will have the option of customizing it in the future, using internal staff or contracting for such work. FINANCIAL IMPACT The funds in the amount of $45,050 will be paid from the Project CP0511, Sales Tax Software, to complete the project. SOFTWARE LICENSE AGREEMENT This Software License Agreement ( "Agreement ") is entered into as of the 24 day of April 2006 ( "Effective Date ") by and between Information Technology eXperts (ITX), a Corporation with offices at 2120 S. College Avenue, Fort Collins, CO 80525 ( "LICENSOR ") and the City of Pueblo, a Colorado municipal corporation with offices at 150 Central Main St. Pueblo, CO 81003( "LICENSEE "). RECITALS WHEREAS, LICENSOR has developed certain Software (as defined below); and WHEREAS, LICENSEE wishes to use such Software. NOW, THEREFORE, the parties agree as follows: 1. DEFINITIONS 1.1 "Licensor Software" means the Sales Tax Software (STS) including database definition, reporting tools, and all other software components developed by LICENSOR as described in Appendix A hereto. Licensor Software does not include Third Party Software, but may (in the future) integrate with the Third Party Software chosen by LICENSEE. Licensor represents that the Licensor Software will integrate with the Third Party Software known as "SQL Server ". 1.2 "Third Party Software" means any software not supplied by Licensor that the Sales Tax software (STS) may interface and /or integrate with. 1.3 "Initial Installation Support" means installation of the Licensor Software (STS) which includes the following functions to be provided by Licensor: (a) Verifying the functioning of all elements of Licensor Software as defined in Appendix A. Material changes made by Licensee in the definitions or requirements from that set forth in Appendix A will constitute extra work. In the event that Licensor believes any such material changes are being requested by Licensee, it shall so advise Licensee in writing before proceeding therewith and shall advise Licensee of the costs thereof. Thereafter, before proceeding with the additional work, the Parties hereto shall negotiate a Change Order which shall be mutually agreed to before any such additional work is performed. (b) Initial basic training of LICENSEE on the use of Licensor Software; requests for additional Report Writer training and product training will be addressed through another set of proposals from the Licensor; and 1.4 "Operation Support' means the efforts of Licensor designed to ensure that the Licensor Software continues to function properly after installation; 2. LICENSE GRANTS AND RESTRICTIONS 2.1 License. Subject to the terms of this Agreement, LICENSOR hereby grants to LICENSEE, for the term of this Agreement and subject to Section 2.2, the following perpetual, nontransferable, nonexclusive licenses: (a) A license (the "License ") which is an unlimited user license authorizing use of the Licensor Software by the City of Pueblo, its agents and employees for the purpose of entering and manipulating data and reporting data, in original or modified formats, relating to or concerning City of Pueblo Sales and Use taxes. This License is not intended to cover any third party license agreements with the selected database, SQL Server. 2.2 License Restrictions. The rights granted in Section 2.1 are expressly limited to, and restricted by, the following: (a) Sublicensing. The License granted pursuant to Section 2.1 does not include the right for LICENSEE to grant sublicensing rights to a third party, or for LICENSEE to grant to a third party a license to adapt, create derivative works for, translate or otherwise modify the Licensor Software, or to grant any type of license or right except as specified above. (b) Reverse Engineering. LICENSEE shall not, either directly or indirectly, knowingly cause or permit a third party to reverse engineer, disassemble, or decompile the Licensor Software, or make any attempt in any fashion to obtain the source code to the Licensor Software unless specifically authorized by LICENSOR. (c) Derivative Works. LICENSEE shall have the right to create derivative works of the Licensor Software for use by LICENSEE. LICENSEE shall not have the right to transfer or sell derivative works to any other entity, whether directly or through any third party, including, but not limited to, translated or localized releases of the Licensor Software. (d) Source Code. LICENSEE shall be entitled to receive and access the Source Code for the Licensor Software, and recompile same with Licensee's modifications.. If the LICENSEE modifies the source code in any way without the approval of the modifications by Licensor, the LICENSOR will no longer be responsible for supporting the modified version of the Licensor Software. 3. USE OF LICENSOR TRADEMARKS 3.1 Co- Branding. LICENSEE agrees to allow LICENSOR to refer its potential customers or investors to any public demonstrations of the LICENSEE's applications containing the Licensor Software. LICENSEE may co -brand LICENSEE Product with the trademarks "Powered by ITX software" and LICENSOR's standard trade logo in a manner agreed to by the parties. LICENSOR' S agreement to allow LICENSEE to use the trademarks and standard trade logo shall not be unreasonably withheld. Nothing in this section is intended to allow public disclosure of any confidential tax records. 3.2 Ownership of Trademark by LICENSOR. Any and all goodwill arising from LICENSEE's use of the LICENSOR Trademarks shall inure solely to the benefit of LICENSOR. LICENSEE shall not assert any claim to the Licensor Trademarks (or any confusingly similar mark) or such goodwill. 4. FEES. In consideration of the licenses granted under this Agreement, LICENSEE shall pay to LICENSOR the fees specified below: 4.1 Software Development Fees. User agrees to pay the amounts specified in Appendix A in consideration of LICENSOR granting LICENSEE the right to use the Software, and LICENSOR furnishing to LICENSEE the maintenance services described below in relation to the Software. Integration and support fees will be as specified in Appendix A; LICENSOR will provide three years of maintenance (including upgrades, critical bug fixes, and new releases) for no additional cost provided the LICENSEE stays on the latest released version of STS. Other LICENSOR clients' requirements will drive the specification of future updates and releases of STS. Specific changes that are needed only by the LICENSEE will be paid for by the LICENSEE on a case by case basis as mutually agreed by the parties hereto; the LICENSOR will integrate these changes into subsequent releases of STS on a best effort basis. If the LICENSEE chooses to diverge from the standard STS upgrade path, the LICENSEE will be required to pay the LICENSOR on a Time and Materials basis for all development costs, integration services fees, and support fees unique to Licensee's needs and use which will be invoiced at the current negotiated billing rates. 4.2 Maintenance Services. The maintenance services are: (a) Supplying upgrades to the Software at LICENSOR's sole discretion; and (b) Supplying corrections for errors and bugs made known to LICENSOR in a currently supported release of the Software, normally by the issuance of updated versions of the Software from time to time as LICENSOR shall determine. After the initial three years, the annual maintenance and support costs will be 20% of the standard licensing fee at that time. Installation and site specific system support is not included in the maintenance services, LICENSEE can request these services at which time LICENSOR will provide a quote for providing additional services. 43 Availability of Facilities. LICENSEE shall make available free of charge to LICENSOR all information, access to Licensee physical facilities and service reasonably required by LICENSOR for the performance of its /their obligations under this Agreement. 4.4 Payment Schedule. (a) LICENSEE shall pay LICENSOR the Sales Tax Software Development cost as specified in the Cost Overview section of Appendix A. Fifty percent of the Sales Tax Software Development cost will be invoiced upon delivery of Release 1 to LICENSEE, with the remaining balance to be invoiced upon acceptance by LICENSEE of Release 4. Charges due upon delivery of Release 1 and charges due upon acceptance of Release 4 shall be due within thirty (30) days after invoice. LICENSOR reserves the right to add a late charge not exceeding 1.5% per month, or fraction thereof, for failure to make payment for valid charges within 30 days of the invoice date. (b) All work beyond the scope of this Agreement shall be subject to the requirements of section 1.3 (a) concerning additional work and, if agreed by the Parties, at LICENSOR's then current standard rates for the time spent by the personnel in performing such services (including any travel time to and from the Location), together with any incidental expenses reasonably incurred. 4.5 Currency and Interest. All payments shall be in U.S. Dollars. 4.6 Taxes and Tariffs. All present or future domestic or foreign sales, use, value- added, personal property, transfer, withholding, excise or other federal, state or local taxes, export or import taxes, duties, tariffs and charges based on the licenses granted under this Agreement shall be paid directly by LICENSEE. This shall not apply to taxes based on LICENSOR's income. The fees listed in this Agreement do not include any such taxes or other charges. 5. TECHNICAL CONSULTING AND SUPPORT SERVICES 5.1 Technical Support. Any services beyond the scope of Operation Support and what is otherwise to be provided by Licensor under this Agreement shall be subject to the same limitations and requirements as for extra work under section 1.3 (a) and provided by LICENSOR to LICENSEE at its standard consulting rates, which shall not increase more than once annually and shall not increase more than 20% in any given year, or as the Parties may agree in writing.. 5.2 End User Support Obligations. LICENSEE shall be solely responsible for providing support and skilled instruction to End Users regarding the use and installation of the Licensor Software. 53 Third Party Software Support. LICENSEE is solely responsible for selecting, purchasing, and maintaining its own Third Party Software. LICENSOR is not responsible for maintaining the LICENSEE's third party software. 5.4 Restrictions. LICENSOR's obligation of technical support are conditioned upon LICENSEE's compliance with Upgrades, technical modifications and fixes suggested by LICENSOR at various times. The costs associated with software upgrades are outlined is section 4.2.b. In the event that LICENSEE makes Licensor Software modifications, fixes or derivative works of the Licensor Software in accordance with this Agreement, which conflict or are inconsistent with express suggestions or requirements provided by LICENSOR, then LICENSOR may choose to discontinue technical support to LICENSEE after 90 days prior written notice to Licensee. Licensee may elect to discontinue receiving technical support from Licensor ant any time, in its sole discretion. 5.5 Incidental Expenses. LICENSEE shall be solely responsible for payment of all expenses incurred by LICENSEE in its performance of this Agreement. Provided that LICENSOR receives prior written authorization and approval from LICENSEE, out -of- pocket expenses incurred by LICENSOR for travel, related supplies, (including, without limitation, long distance calls from LICENSEE's site) and other expenses incurred by LICENSOR during any on -site services shall be paid by LICENSEE. 6. TERM AND TERMINATION 6.1 Term. This Agreement shall commence on the Effective Date and continue perpetually unless terminated earlier under the terms of this section. 6.2 Termination for Late Payment. LICENSOR may terminate this Agreement at any time upon 30 days written notice to LICENSEE if LICENSEE fails to make payment of the software development fees described in section 4.1 (which may also be referred to herein as the "initial license fees ") within sixty (60) days of when they are due. In such case, LICENSEE will return all documentation and source code and will have no right to continue to use Licensor Software. 6.3 Termination For Cause. Either party may terminate this Agreement upon Thirty (30) days written notice to the other party if the other party (i) breaches this Agreement and fails to cure such breach within thirty (30) days of written notice describing such breach, or (ii) becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, provided such petition is not dismissed within sixty (60) days of filing or upon the winding -up or liquidation of the other party's operations. If all of the initial license fees have been paid, LICENSEE shall have the right to continue to use Licensor Software subject to the conditions specified in Section 2.1 and Section 2. 6.4 Termination Without Cause. LICENSEE may terminate this Agreement, for any reason, with or without cause, upon thirty (30) days written notice to LICENSOR. Provided the initial license fees have been paid, LICENSEE shall have the full right to continue to use Licensor Software subject to the conditions specified in Section 2.1 and Section 2.2. 6.5 Source Code in the event of Termination Without Cause. In the event of termination without cause or as otherwise set forth in Section 6.5 and 6.6, if Licensor has not already done so, LICENSOR shall provide LICENSEE the Source Code of the Licensor Software and all other information and resources necessary for LICENSEE to continue to utilize the Licensor Software. After LICENSOR' S initial provision of such information and resources, it shall be the responsibility of the LICENSEE to obtain the appropriate resources to maintain the Licensor Software after termination. 6.6 For purposes of this Agreement, grounds for termination shall include the following: (a) Existence of any one of the following circumstances involving Licensor which remain uncorrected for more than sixty (60) days: (i) failure to continue to do business in the ordinary course without successor; (ii) entry of an order for relief under Title 11 of the United States Code; (iii) making a general assignment for the benefit of creditors; (iv) appointing a general receiver or trustee in bankruptcy; or (v) action under any state insolvency or similar law for bankruptcy, reorganization or liquidation; and (b) Existence of any one of the following circumstances involving Licensor which remain uncorrected for more than ninety (90) days: (i) abandonment of product with no qualified, capable successor, (ii) discontinuance of Support Services with no qualified capable successor, or (iii) material failure to perform Support Services. 6.7 Return of Licensor Software upon Termination. Except as provided in Sections 6.4 above, upon termination of the License granted under this Agreement by Licensor for cause, LICENSEE shall cease using the Licensor Software,. 6.8 Effect of Termination. Termination of this Agreement or any license shall not limit either party from pursuing any other remedies available to it, including seeking injunctive relief, nor shall such termination relieve LICENSEE's obligation to make all payments that accrued prior to such termination. 7. SURVIVAL. The parties' rights and obligations under Sections 2.1, 2.3, 4.5, 5.4, 6.4, 6.5, 8.3, 10, 11, 12, 13 and as the context requires shall survive any termination or expiration of this Agreement. 8. LICENSOR'S WARRANTIES 8.1 Title. LICENSOR represents and warrants that it has the right to grant the License as set forth in this Agreement, and that such License and the exercise thereof do not and shall not infringe on any third party's proprietary rights. LICENSOR further warrants that there are no pending or threatened lawsuits concerning any aspect of the Licensor Software. 8.2 Non - Infringement. Without limiting LICENSEE's rights under Section 2 or this Section 8, should the Licensor Software become, or in LICENSOR 's opinion be likely to become, the subject of any infringement claim or suit, LICENSOR shall immediately, at its option: (a) Procure for LICENSEE the right to continue using the Licensor Software, as contemplated by this Agreement; or, (b) Modify the Licensor Software such that it no longer infringes the proprietary rights of any third party, while maintaining the functionality of the Licensor Software; or, (c) Substitute the Licensor Software with other software reasonably suitable to LICENSEE 8.3 Limitations on Non - Infringement. LICENSOR shall have no liability for any claim of infringement based on (i) modifications or derivatives of Licensor Software made by LICENSEE under this Agreement; (ii) use of a superseded or altered release of Licensor Software if such infringement would have been avoided by the use of a current unaltered release of the Licensor Software that LICENSOR provides to LICENSEE, or (iii) the combination, operation, or use of any Licensor Software furnished under this Agreement with programs or data not furnished by LICENSOR if such infringement would have been avoided by the use of the Licensor Software without such programs or data. 8.4 Licensor Software Warranty. LICENSEE intends to utilize the Licensor Software consistent with the description specified in Appendix A. LICENSOR warrants that the Licensor Software is suitable for, and will operate properly for, this purpose. Aside from LICENSOR'S warranty as herein set forth, the Licensor Software is provided to LICENSEE "AS IS" without other warranties of any kind, express or implied, and LICENSOR shall not be responsible to LICENSEE for any losses, claims or damages of whatever nature arising out of LICENSEE's use of the Licensor Software. Except as expressly provided herein, LICENSOR does not warrant that the Licensor Software shall meet LICENSEE's requirements; and LICENSOR does not warrant that the Licensor Software will operate in the combinations which LICENSEE may select for use or with all other software used by LICENSEE. In addition, there is no warranty granted for the operation of the Licensor Software with 6 respect to interruptions of short duration and minor errors that do not affect the software's primary functions. LICENSOR shall have no obligation to undertake correction of errors caused by LICENSEE's modifications to the Licensor Software. 8.5 Services Warranty. LICENSOR warrants that its Technical Consulting and Support Services shall be of a professional quality conforming to generally accepted industry standards and practices and that requests for support shall receive timely response and service. This warranty shall be valid for 30 days from completion of service. 8.6 Limitation on Warranties. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, LICENSOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, SUFFICIENCY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. Repair or replacement of a code shall be warranted for (30) thirty days. 9. LICENSEE REPRESENTATIONS AND OBLIGATIONS 9.1 LICENSEE Representations. LICENSEE represents, covenants and warrants the following (a) LICENSEE shall use reasonable efforts to protect LICENSOR's rights in the LICENSOR's trademarks, patents, logos, copyrights, and trade secrets and any other of its intellectual property. (b) LICENSEE shall not make any representations concerning the Licensor Software's capabilities, which are beyond the representations made by LICENSOR in this Agreement. 9.2 LICENSEE and LICENSOR Obligations. If LICENSEE becomes aware of any actual or suspected unauthorized use or disclosure of the Licensor Software, or of the copyrights, patents, trademarks, service marks, trade secrets or Confidential Information of LICENSOR, LICENSEE shall promptly notify LICENSOR and shall assist LICENSOR, at LICENSOR's request and expense, in the investigation and prosecution of such unauthorized use or disclosure. If LICENSOR becomes aware of any actual or suspected unauthorized use or disclosure of the Licensor Software, or of the copyrights, patents, trademarks, service marks, trade secrets or Confidential Information of LICENSEE, LICENSOR shall promptly notify LICENSEE and shall assist LICENSEE, at LICENSEE 's request and expense, in the investigation and prosecution of such unauthorized use or disclosure. 10. INDEMNIFICATION 10.1 LICENSEE'S Indemnification. To the extent authorized by law, LICENSEE shall indemnify, defend and hold harmless LICENSOR from all claims, losses, and damages, including attorneys' fees, which may arise from LICENSEE's (i) breach of any warranty it makes under this Agreement, or misrepresentation made by LICENSEE, (ii) inadequate installation, support or assistance by LICENSEE, and (iii) any other negligent act or failure to act on the part of LICENSEE; provided, however, that nothing in this Agreement is intended, nor shall it be construed, to create or extend any rights, claims, or benefits or assume any liability for or on behalf of any third party, or to waive any immunities or limitations otherwise conferred upon Licensee under or by virtue of federal or state law, including but not limited to the Colorado Governmental Immunity Act, C.R.S. § 24 -10- 101, et. seq. 10.2 LICENSOR'S Indemnification. LICENSOR shall indemnify LICENSEE from all claims, losses, and damages, including attorneys' fees, which may arise from the infringement or claim of infringement, of the proprietary rights of a third party by the Licensor Software in violation of LICENSOR's warranty under Section 8.1 hereof, or from LICENSOR's failure to undertake such measures as set forth in Section 8.2 in case of infringement or likely infringement of the proprietary rights of third parties by the Licensor Software. LICENSOR shall have the right to participate in the defense of any such claim at its own expense. 10.3 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE's sole and exclusive remedy for Licensor Software nonconformity shall be recovery of the License Fee paid to LICENSOR. 11. CONFIDENTIALITY 11.1 Confidential Information. The term "Confidential Information" means any trade secrets, intellectual property or proprietary information disclosed by one party to the other pursuant to this Agreement that is in written, graphic, machine readable or other tangible form and is also marked "Confidential ", "Proprietary" or in some other manner to clearly indicate its confidential nature, except that Licensee's customer list, accounts receivable and payable data will at all times be considered "Confidential" and "Proprietary" without further demarcation. Confidential Information may also include such information disclosed verbally by one party to the other pursuant to this Agreement, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by the disclosing party within a reasonable time (not to exceed 30 days) after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to the receiving party. 11.2 Confidentiality. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party's Confidential Information. 11.3 Exceptions. Confidential Information excludes information that: (i) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the disclosing party; (iv) was independently developed by the receiving party without any use of the Confidential Information; or (v) becomes known to the receiving party from a third party without a duty of confidentiality to the disclosing party. The receiving party may disclose the other party's Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, but only if the receiving party provides prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. 12. PROPRIETARY RIGHTS 12.1 LICENSOR's Proprietary Rights. LICENSOR shall retain all right, title, and interest (including patent, copyright, trademark, service mark, trade secret, and other intellectual property rights or informational rights) relating to the Licensor Software, all underlying technology, the LICENSOR Confidential Information and all legally protectable elements or derivative works thereof. Notwithstanding anything to the contrary in this Agreement, LICENSOR shall not be prohibited or enjoined at any time by LICENSEE from utilizing any skills or knowledge of a general nature acquired during the course of providing the Licensor Software, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of LICENSOR. 12.2 DISPUTE RESOLUTION. If during the continuance of this Agreement or any of its terms or any other matter related to the operation of this Agreement a dispute arises concerning any term of this Agreement, then either Party may give written notice to the other Party of the dispute and the reasons therefore. Senior Management members of each Party shall consult in an effort to reach a mutually satisfactory agreement. In the event that agreement cannot be reached by these individuals within fifteen (15) days, then the dispute shall be decided in a court of competent jurisdiction located in Pueblo County, Colorado. 13. GENERAL 13.1 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado, U.S.A., without reference to its conflict of laws principles. 13.2 Forum Selection. All disputes arising out of this Agreement are subject to the exclusive jurisdiction of the state courts of competent jurisdiction located in Pueblo County, Colorado, and the parties hereby submit to the personal jurisdiction and venue of these courts. 7 13.3 Partial Invalidity. If any provision in this Agreement is found invalid or unenforceable, then the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement, which shall remain in full force and effect, and the parties shall negotiate, in good faith, a substitute, valid and enforceable provision that most nearly effects the parties' intent in entering into this Agreement. 13.4 Independent Contractors. The parties are independent contractors. Nothing contained herein shall constitute either party the agent of the other party, or constitute the parties as partners or joint venturers. LICENSEE shall make no representations or warranties on behalf of LICENSOR with respect to the Software. 13.5 Modification. No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement shall be valid or binding on either party unless the same is mutually agreed to in writing by both parties. 13.6 Waiver. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, shall not be construed to be a waiver of such provisions, or in any way affect the right of either party to enforce such provision thereafter. The express waiver by either party of any provision of this Agreement shall not constitute a waiver of any future obligation to comply with such provision. 13.7 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that neither party shall assign any of its rights, obligations, or privileges (by operation of law or otherwise) hereunder without the prior written consent of the other party. Notwithstanding the foregoing, however, (i) either party may assign this Agreement to a successor in interest (or its equivalent) of all or substantially all of its relevant assets, whether by sale, merger, or otherwise; and (ii) LICENSOR (and any assignee of LICENSOR) may assign this Agreement to any of its Affiliates. Except as expressly provided in this Section 13.7, any attempted assignment in violation of this section shall be void. 13.8 Notices. Any notice required or permitted to be given by either party under this Agreement shall be in writing and personally delivered or sent by commercial courier service (e.g., FedEx), or by first class mail to the other party at its address first set forth above, or such new address as may from time to time be supplied hereunder by the parties hereto. If mailed, notices will be deemed effective 5 working days after deposit, postage prepaid, in the mail. 13.9 Force Majeure. Notwithstanding anything else in this Agreement, and except for the obligation to pay money, no default, delay or failure to perform on the part of either party shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond reasonable control of the party charged with a default, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier. 10 13. 10 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supercedes all previous agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter hereof. "IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by duly authorized officers or representatives as of the date first above written. Information Technology eXaerts, Inc. ( "LICENSOR') City of Pueblo ( "LICENSEE ") By: By: Print Name: Bruce Hottman Judy Weaver Title: Vice President Title: Vice President of City Council ATTEST: By: Ci Clerk 11 RELEASE AND CANCELLATION AGREEMENT THIS RELEASE AND CANCELLATION AGREEMENT (hereinafter referred to as the "Release ") is entered into as of the 25 day of March, 2008, by and between Information Technology eXperts, Inc., a Colorado corporation ( "ITX") and the City of Pueblo, a Municipal Corporation ( "City ") for the purposes of terminating a Software License Agreement previously entered into between ITX and City, and settling and releasing all claims, controversies and disputes arising therefrom. ITX and City may each be referred to herein singly as a "Party" or collectively as the "Parties." RECITALS WHEREAS, the Parties have heretofore entered into a Software License Agreement dated April 24, 2006 (the "Software Agreement ") under which ITX was to develop and license certain computer software to City for City's use in its municipal tax and business license operations; and WHEREAS, City claims that ITX failed to timely perform the Software Agreement and failed to develop the computer software as required by the Software Agreement and its Appendix; and WHEREAS, ITX contends it made good faith efforts to fulfill its obligations under the Software Agreement and denies any breach thereof; and WHEREAS, the Parties acknowledge that neither Party has received the benefits it anticipated under the Software Agreement; and WHEREAS, without admitting the merits of any claim or contention, the Parties desire to cancel the Software Agreement and settle and resolve all disputes between them relating to the foregoing matters. NOW, THEREFORE, in consideration of the foregoing Recitals, the cancellation of the Software Agreement, and the compromise and settlement of claims as set forth herein, the Parties agree as follows: TERMS AND CONDITIONS 1. The Software Agreement is hereby cancelled and terminated by mutual agreement of the Parties as of the date of this Release, and the Parties are hereafter released from any and all remaining obligations thereunder. 2. ITX shall retain all payments heretofore actually made and paid by the City in full satisfaction of ITX's claims and as full payment for its services rendered and any license fees earned under the Software Agreement. ITX expressly releases City from any and all further J • payment obligations, if any, under the Software Agreement. 3. All Licenses heretofore granted under the Software Agreement are terminated as of the date of this Release. Within thirty (30) days of the date of this Release, City shall either destroy or return to ITX: (a) all electronic and paper copies of source code and machine code for software developed by ITX under the Software Agreement together with any such software in any incomplete state of development which had been provided by ITX; (b) all other confidential or proprietary information furnished by ITX to City during its performance under the Software Agreement. which has been marked or identified as proprietary. Nothing in this Release shall be construed to limit ITX from further developing such software for sale or license to others, nor affect its intellectual property rights in same. 4. Within thirty (30) days of the date of this Release, ITX shall return to City all data, descriptions of operations, and tax and license information heretofore furnished by City to ITX. 5. In consideration of the terms and provisions of this Release and for the mutual releases and covenants expressed herein, ITX hereby releases and forever discharges City and City's agents, employees, officers, attorneys, successors and assigns from any and all actions, claims, counterclaims, cross claims and demands of whatever nature, now existing, whether known or unknown, or which may arise hereafter, relating to or arising from the Software Agreement, or from City's actions, failure to act, or from statements or assessments of performance made or given by City related thereto. 6. In consideration of the terms and provisions of this Release and for the mutual releases and covenants expressed herein, City hereby releases and forever discharges ITX and ITX's agents, employees, officers, attorneys, successors and assigns from any and all actions, claims, counterclaims, cross claims and demands of whatever nature, now existing, whether known or unknown, or which may arise hereafter, relating to or arising from the Software Agreement, or from ITX's actions, failure to act, or from statements or assessments of performance made or given by ITX related thereto. 7. ITX represents and warrants that no other person or entity has any interest in the claims, demands, obligations or causes of actions released by ITX under this Agreement. ITX further warrants that it recognizes that it may have sustained unknown or unforeseen losses, costs, expenses, damages, liabilities, claims, injuries, damage to property or business losses and the consequences thereof, which may at this time, heretofore and hereafter be unknown, unrecognized and not contemplated by it, which resulted or may or will result from the above described matters and all matters incidental and related thereto, and that no promise or inducement has been offered except as herein set forth, and that all agreements and understandings between the Parties are expressed herein and that this Release was executed without reliance on any statement or representation by City or its agents, employees, officers or attorneys. Further, ITX assumes the risk of any mistake of fact and law to any damages, loss or injuries, whether disclosed or undisclosed, sustained as the result of the above mentioned matter and all matters incidental and related thereto. It is further understood and agreed that all agreements and understandings between the Parties are embodied and expressed herein and that the terms of this Release are contractual and not mere recitals. 8. Except to the extent otherwise required by provisions of the Colorado Open Records Act, §24 -72 -201, et sM., C.R.S., each Party agrees to refrain from making any further statements regarding the performance of the other Party under the Software Agreement. ITX shall not, in any advertising or promotional materials or in references submitted to any potential customer, identify City as a former client or customer. The Parties may respond to any request for information relating to the Software Agreement by stating that such Agreement had been entered into and had been cancelled by mutual agreement. 9. This Release shall bind and inure to the benefit of the officers, employees, agents, representatives, attorneys, successors and assigns of the parties. 10. This Release shall be governed by and interpreted under the laws of the State of Colorado. 11. The Parties shall be responsible for their respective attorney fees, expenses and costs. 12. This Release may be executed in two or more counterparts, each of which shall be deemed an original, and all of which, when taken together, constitute one and the same document. The signature of any party's representative to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart. A faxed signature of a party on a signature page of a counterpart of this Release shall be as valid and binding as the original ink impression of such party. 13. Each of the signatories executing this Release in a representative capacity on behalf of an entity hereby certifies that he or she has actual authority to so execute on behalf of his or her principal. 14. The undersigned certify that they have read this entire Release, have consulted with their attorneys, or have had the opportunity to consult with their attorneys, concerning its terms and fully understand, approve and agree to its terms. 15. Venue and jurisdiction for any action arising out of or relating to this Release shall lie exclusively in the District Court, Pueblo County, Colorado. 16. As additional consideration for the compromise and settlement of claims contained herein and the payments to made hereunder, the Parties agree that they each waive any right to trial by jury in any litigation seeking enforcement of this Release, arising under this Release, or in any way connected to this Release. City of Pueblo, a Municipal Corporation Information Technology eXperts, Inc. By C� Z- By " � t ��Y 3 Nao i C. Hedden Bruc A. Hottman Director of Purchasing Vice President K