HomeMy WebLinkAbout279535 PERISCOPE - CONTRACT - CONTRACT - 2207870f'6iE &tt..
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March 4, 2003
Mr. James B. O'Neill, CPPO
Director of Purchasing and Risk Management
City of Fort Collins
PO Box 580
300 LaPorte Ave.
Fort Collins, CO 80522
Dear Mr. O'Neill,
Thank you for allowing Periscope Holdings, Inc. (Periscope) the opportunity to serve the City
of Fort Collins. Based on our November 11, 2002 quote, this letter outlines the terms, products,
and services that Periscope will provide The City of Fort Collins (City) over the next few years.
The following key areas of our arrangement are addressed:
• Project Background and Expectations
• Project Scope and Approach
• Project Deliverables
• Project Timeline
• Project Costs
• Term of Offer
• Payment Terms
• Software Terms
Project Background and Expectations
The City has requested that Periscope provide software licenses to operate BuySpeed Online
Vendor, and Bid Management, plus onsite setup, onsite training, and annual software support
and maintenance.
Project Scope and Approach
The project includes the installation of the licensed Periscope software products and software
product training.
Arrangement Letters for breach of a material term or condition of this Agreement,
provided the breaching party shall not have cured such breach within the thirty
(30) day period. In the event of such termination, Client shall pay Periscope for all
services rendered and expenses incurred by Periscope prior to the date of
termination.
12.2 A waiver of a breach or default under this Agreement shall not be a waiver of any
other or subsequent default. Failure of either party to enforce compliance with
any term or condition of this Agreement shall not constitute a waiver of such term
or condition.
12.3 The parties further agree that, in the event of a dispute or alleged breach, they will
work together in good faith first, to resolve the matter internally by escalating it to
higher levels of management and, then if necessary, to use a mutually agreed
alternative dispute resolution technique prior to resort to litigation, other than
disputes involving confidentiality or infringement of intellectual property rights
(in which case either party shall be free to seek available remedies in any forum).
12.4 The terms of Sections 5.1, 6.1, 7, 8.1, and 11 shall survive termination of this
Agreement.
13. Taxes.
13.1 There shall be added to any charges payable by Client under this Agreement
amounts equal to any and all applicable taxes, however designated, incurred as a
result of or otherwise in connection with this Agreement or the Services, including
without limitation state and local privilege, excise, sales, and use taxes and any
taxes or amounts in lieu thereof paid or payable by Periscope, but excluding taxes
based upon wages, payroll taxes, or the net income of Periscope.
14. Assignment.
14.1 Periscope shall not assign this contract voluntarily, involuntarily or by operation
of law without the express written consent of Client.
15. Severability.
15.1 If any term or provision of this Agreement shall be found by a court of competent
jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not
effect the other terms or provisions hereof or the whole of this Agreement, but
such term or provision shall be deemed modified to the extent necessary in the
court's opinion to render such term or provision enforceable, and the rights and
obligations of the parties shall be construed and enforced accordingly, preserving
Fort Collins Service Agreement.doc
to the fullest permissible extent the intent and agreements of the parties herein set
forth.
16. Notice.
16.1 Any notice or other communication given pursuant to this Agreement shall be in
writing and shall be effective either when delivered personally to the party for
whom intended, or five (5) days following deposit of the same into the United
States mail (certified mail, return receipt requested, or first class postage prepaid),
addressed to such party at the address set forth on the initial page of this
Agreement. Either party may designate a different address by notice to the other
given in accordance herewith.
17. Force Majeure.
17.1 Neither party shall be liable for any delays or failures in performance due to
circumstances beyond its control.
18. Complete Agreement.
18.1 This Agreement, including any exhibits attached hereto, and any Arrangement
Letters set forth the entire understanding between the parties hereto and
supercedes all prior agreements, arrangements and communications, whether oral
or written, with respect to the subject matter hereof. This Agreement and the
Arrangement Letters attached hereto are not a part of, do not depend for their
consideration or enforceability upon, and shall not be construed with or as a part
of any other agreement, either past, present or future. All prior or
contemporaneous promises, representations, agreements, or understandings are
merged herein and superseded hereby. No other agreements, representations,
warranties or other matters, whether oral or written, shall be deemed to bind the
parties hereto with respect to the subject matter hereof. Each party acknowledges
that it is entering into this Agreement solely on the basis of the agreements and
representations contained herein, and for its own purposes and not for the benefit
of any third party. This Agreement may not be modified or amended except by
the mutual written agreement of the parties.
19. Governing Law.
19.1 This contract shall be deemed to be made under, and shall be construed in
accordance with, the laws of the State of Colorado. All disputes which arise in
connection with, or are related to this contract shall be resolved, if not sooner
settled, by a court of competent jurisdiction of the State of Colorado.
Fort Collins Service Agreement.doc
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
Periscope Holdings, Inc.
Title
Date
Client
By
Title
Date
Fort Collins Service Agreement.doc
EXHIBIT A
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is entered into as of
M RCq (rL 2002 between Periscope Holdings, Inc. ("Licensor"), a corporation formed
under the laws of the State of Delaware, with its principal place of business at 900 Congress
Avenue, Suite 400, Austin, Texas, 78701-2437,,and Fort Collins, Colorado ("Licensee"), with its
principal place of business at PO Box 580, 300 LaPorte Ave., Fort Collins, Colorado 80522.
WHEREAS, Licensee has evaluated the software products developed by Licensor and desires to
obtain a nonexclusive license to use the software products within its Agency, and
WHEREAS, Licensor desires to grant Licensee a perpetual, nonexclusive, and nontransferable
license to permit Licensee to use such software products within its Agency in exchange for a
lump sum royalty fee,
NOW THEREFORE, in consideration of the mutual covenants contained herein, Licensor and
Licensee agree as follows:
1. Definitions
1.1 Licensed Software Products. The term "Licensed Software Products" means the computer
programs in object code and the related users manuals and other related documentation,
whether they be in printed or electronic form, all described in Exhibit A attached hereto
and made a part of this Agreement by this reference.
1.2 Custom Enhancements. The term "Custom Enhancements" means any changes,
additions, translations, or derivations to or of the Licensed Software Products which are
developed by Licensor, at the request of the Licensee, as specified in a separate Contract or
Agreement. Custom Enhancements become an integral part of the Licensed Software
Products and are herein licensed to the Licensee pursuant to terms and conditions of this
Agreement.
1.3 Agency. The term "Agency" shall mean Fort Collins, CO.
1.4 Authorized User(s). The term "Authorized User(s)" means any current employee of the
Agency, or any consultant to the licensee who is actively involved in one or more
consulting engagements to the licensee.
1.5 Concurrent Users. Concurrent Users means the Authorized Users which are logged onto
and have access to the Licensed Software Products at any given point in time. As
specified in the Arrangement Letter, this Agreement restricts the number of Concurrent
Users that may have access to the Licensed Software Products.
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1.6 Local Network System(s). The term "Local Network System(s)" means multiple,
interactive user terminals connected to a single -processing or a multi -processing
microcomputing unit, which are owned or leased by Licensee for the exclusive use of the
Agency's employees or consultants, whereby the user of an interactive terminal does not
have physical access to the physical storage medium containing a copy of any of the
Licensed Software Products.
1.7 Freestanding Workstation(s). The term "Free -Standing Workstation(s)" means a self-
contained microcomputing unit which is owned or leased by Licensee for the exclusive
use of the Agency's employees or consultants, and for which Licensee has provided a copy
of any of the Licensed Software Products.
1.8 Web Server(s). The term "Web Server(s)" means any computer which is owned or leased
by Licensee which is attached to or accessible from the Internet, and which Licensee uses
to host any of the Licensed Software Products which contain one or more Web -Enabled
Functions. Each Web Server has its own unique IP Address.
1.9 Web -Enabled Function(s). The term "Web -Enabled Function(s)" means any part of any of
the Licensed Software Products which is accessible from the Internet.
2. License
2.1 Subject to the terms of this Agreement, Licensor grants to Licensee, and Licensee accepts
from Licensor, a perpetual, nonexclusive, and nontransferable, limited license to use and
reproduce the Licensed Software Products for use only within the Agency, for use only by
Authorized Users, and for use only on the Local Network Systems, Free -Standing
Workstations, and Web Servers owned, leased, or operated by the Agency.
2.2 Any of the Licensed Software Products which are Web -Enabled Products, and which are
installed and reside on any of the Agency's Web Server(s) are licensed for use only on that
one single specific Web Server. Licensee is not authorized to move or transfer any such
Web -Enabled Products from the licensed Web Server without the prior written consent of
Licensor. All Web -Enabled Products are subject to the special covenants related to
security and protection contained in Section 6.3 of this Agreement.
2.3 Upon Licensee's request, Licensor will supply to Licensee, fully -functional
Tutorial/Demonstration copies of any of the Licensed Software Products (other than
Web -Enabled Products) for the Agency to use for internal training purposes. The license
granted by this Agreement authorizes Licensee to install and use the
Tutorial/Demonstration copies of the Licensed Software Products on Freestanding
Workstations for training purposes and to allow Authorized Users to remove the
Tutorial/Demonstration copies of the Licensed Software Products from the Agency's
physical premises and install the Tutorial/Demonstration copies of the Licensed Software
Products on other personal computers solely to permit off -site training and internal
support work on a remote basis. All the terms and conditions of this License Agreement,
including, without limitation, all the protective covenants and restrictions relating to
Fort Collins Software License Agreement.doc 2 02/18/03
ownership, title, right, distribution, and confidentiality contained in Sections 4, 5, and 6 of
this Agreement shall apply to any Tutorial/Demonstration copies of the Licensed
Software Products whether they are used within the Agency's physical premises or offsite.
Licensee agrees to exercise special caution to any Authorized User with access to any copy
of any of the Licensed Software Products which will be removed from the Agency's
physical premises or used offsite.
2.4 The Agency's use of the Licensed Software Products is expressly restricted and limited to
the restrictive conditions and provisions of the foregoing two paragraphs. No other use of
the Licensed Software Products is authorized by this Agreement.
3. Copies of Licensed Software Product
3.1 Right to Copy; Notices. The license granted in Section 2 of this Agreement includes the
right to copy the Licensed Software Products and the right to download and reproduce
copies of the documentation manuals and other documentation from Licensor's website,
provided all such copies are used only within the Agency, and are not distributed beyond
the Agency, or otherwise made accessible by anyone other than Authorized Users.
Furthermore, in order to protect Licensor's trade secrets and copyrights in the Licensed
Product, Licensee agrees not to attempt in any way to obliterate or destroy the trade secret
or copyright notices or Licensor's name or address which are incorporated into and made
a part of the Licensed Software Products. Licensee agrees to reproduce fully the trade
secret or copyright notice and the Licensor's name and address in all copies of the
Licensed Software Products. Violation of any provision in this Subsection shall constitute
Licensee's material breach of this License Agreement.
3.2 Bears Cost. Licensee alone shall bear the cost of reproducing and distributing the
Licensed Software Products in accordance with the terms of this Section. Licensor shall
have no obligation to expend any funds whatsoever in connection with such copying and
distributing.
4. Ownership of Licensed Software Product
4.1 Licensor represents that it is, and on the date of delivery of Licensed Software Products
will be, the sole owner and copyright holder of the Licensed Software Products, that it has,
and on the date of the delivery of the Licensed Software Products will have, the full right
and authority to grant this license and that neither this license nor performance under this
Agreement does or shall conflict with any other agreement or obligation to which Licensor
is a party.
5. Title to and Rights in Licensed Software Product
5.1 Proprietary Rights. The Licensed Software Products and updates of the Licensed Software
Products are proprietary to Licensor, and title to them remains with the Licensor. All
Fort Collins Software License Agreement.doc 3 02/18/03
applicable common law and statutory rights in the Licensed Software Products and
updates of the Licensed Software Products, including, but not limited to, rights in
confidential and trade secret material, source code, object code, trademarks, service marks,
patents, and copyrights, shall be and will remain the property of Licensor. Licensee shall
have no right, title, or interest in such proprietary rights.
5.2 Restrictions. Licensee is prohibited from distributing, transferring possession of, or
otherwise making available copies of the Licensed Product to any person other than
Authorized Users under the terms of this Agreement, and from reproducing and installing
the Licensed Software Products for use on any computer not meeting the definition of the
Agency's Local Network System(s) or Freestanding Workstation(s). Licensee shall advise
all Authorized Users that they are prohibited from reproducing, distributing, transferring
possession of, or otherwise making available copies of the Licensed Software Products and
from installing copies of the Licensed Software Products on any computer not meeting the
definition of the Agency's Local Network System(s) or Freestanding Workstation(s).
Licensee and its Authorized Users are prohibited from making any modifications,
adaptations, enhancements, changes, or derivative works of the Licensed Software
Products, and Licensee shall advise all Authorized Users that they are prohibited from
making any modifications, adaptations, enhancements, changes, or derivative works of
the Licensed Software Products. Notwithstanding the foregoing sentence, Licensee is
authorized to create ad -hoc reports from the databases managed by the Licensed Software
Products, and neither such ad -hoc reports or the programs that produce them shall be
considered violations of this Section. Violation of any provision of this Section shall
constitute Licensee's material breach of this License Agreement.
5.3 Instruments. To protect the Licensor's rights in the Licensed Software Products, Licensee,
as a licensee, shall at the reasonable request of Licensor, promptly execute and assign any
and all applications, including, but not limited to, copyright applications, any and all
assignments, and any other instruments which Licensor deems necessary to protect or
maintain Licensor's rights in the Licensed Software Products. Licensee hereby irrevocably
appoints Licensor as attorney -in -fact for Licensee with full power and authority to execute
and deliver in the name of Licensee any such instrument or instruments.
6. Confidentiality
6.1 No Decompilation or DisassemblX. Licensor represents and Licensee hereby
acknowledges that the computer programs constituting the Licensed Software Products
and updates of the Licensed Software Products which are embodied on magnetic or
optical storage media contain confidential and trade secret material. With the exception of
Web -Enabled Products (addressed separately in Section 6(c) below), the programs are not
readily susceptible to reverse compilation or reverse assembly. Licensee and its
Authorized Users shall not attempt to decompile or disassemble the object code of the
Licensed Software Products or updates. Licensee further agrees that it will use its best
efforts to prevent decompilation and disassembly of the object code of the Licensed
Software Products and updates by Authorized Users by advising Authorized Users of the
provisions of this Subsection and by immediately reporting to Licensor and halting any
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reverse compilation or reverse assembly of the Licensed Software Products or updates by
any Authorized User of which Licensee gains actual knowledge.
6.2 Other Restrictions. Licensee agrees to maintain the confidentiality of the Licensed
Software Products and to protect as a trade secret any portion of the Licensed Software
Products which has not been publicly disclosed by preventing any unauthorized copying,
use, distribution, installation, or transfer of possession of the Licensed Software Products
as defined in Section 5.2 of this Agreement by either itself or Authorized Users. Licensee's
obligations under this Subsection as they relate to the use of the Licensed Software
Products by Authorized Users shall be to advise Authorized Users of the provisions in this
Section and Section 5.2 and immediately report to Licensor and to halt unauthorized
copying, use, distribution, installation, or transfer of possession of the Licensed Software
Products by any Authorized User of which Licensee gains actual knowledge.
6.3 Physical Security. Web -Enabled Software Products are not protected by compilation into
machine-readable object code. If this Agreement, either now or at any time in the future,
includes any of the web -enabled products as one of the Licensed Software Products, or if it
includes any other Licensed Software Product which then includes one or more
Web -Enabled Functions, Licensee shall insure adequate protection for the product or such
other Licensed Software Product with Web- Enabled Functions, to insure that it is not
copied or distributed beyond the Licensee's Web Server. Licensee's obligation under this
Section shall include, without limitation, the necessary firewall protection to shield
Director's Chair, BuySpeed Online, or any other Licensed Product which includes one or
more Web -Enabled Functions from unauthorized access by anyone outside the Agency,
and the necessary directory permissions and securities protections to insure that any
Licensed Product which includes one or more Web -Enabled Functions is not copied or
compromised by any Authorized User within the Agency.
7. Technical Support and Annual Maintenance
7.1 Licensor agrees to make available to Licensee an Annual Maintenance Agreement (Exhibit
B of the Service Agreement) which shall provide Licensee with continued access to
support of a technical nature with respect to all aspects of the Licensed Software Products
from the Licensor, and which shall provide Licensee with continued access to all updates
to the Licensed Software Products published by Licensor.
8. Increased Concurrent Users
8.1 Licensor agrees to allow Licensee to increase the number of Concurrent Users at any time
during the term this License remains in effect by paying the then -current amount for the
next level of Concurrent User service provided by Licensor.
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9. Limited Warranty and Disclaimer of Liability
9.1 Results Not Warranted. Licensor has no control over the conditions under which Licensee
and Authorized Users use the Licensed Product and updates and does not and cannot
warrant the results obtained by such use.
9.2_ Limited Warranty. In addition to warranting that it has the right to grant the license
contained in this Agreement, Licensor warrants that the magnetic or optical media on
which the Licensed Software Products or any update is recorded, and any user manual
supplied under the terms of this Agreement are free from defects in material and
workmanship under normal use. Licensor further warrants that the Licensed Software
Products and any update of the Licensed Software Products will perform substantially in
accordance with the specifications found in the user manual in effect as of the date of this
Agreement or as updated by Licensor from time to time. The warranties contained in this
Section are made for a period of ninety (90) days from the date on which the Licensed
Software Products or updates are delivered to Licensee.
9.3 Limitations on Warranty. Licensor does not warrant that the functions contained in the
Licensed Software Products or in any update will meet the requirements of Licensee or
Authorized Users or that the operation of the Licensed Software Products or updates will
be uninterrupted or error free. The warranty does not cover any copy of the Licensed
Software Products or updates or any user manual which has been altered or changed in
any way by Licensee or any Authorized User. Licensor is not responsible for problems
caused by changes in or modifications to the operating characteristics of any computer
hardware or operating system for which the Licensed Software Products or an update is
procured, nor is Licensor responsible for problems which occur as a result of the use of the
Licensed Product in conjunction with software or with hardware which is incompatible
with the operating system for which the Licensed Software Products are being procured.
9.4 _Exclusion of Implied Warranties. ANY IMPLIED WARRANTIES, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
ARE EXPRESSLY EXCLUDED.
9.5 Exclusion of Any Other Warranties. The warranties contained in Subsection 9.2 of this
Section are made in lieu of all other express warranties, whether oral or written. Only an
authorized officer of Licensor may make modifications to this warranty or additional
warranties binding on Licensor, and such modifications or additional warranties must be
in writing. Accordingly, additional statements such as those made in advertising or
presentations, whether oral or written, do not constitute warranties by Licensor and
should not be relied upon as such.
10. Limitation of Remedies
10.1 Replacement Sole Remedy. Subject only to Section 14 of this Agreement, Licensor's entire
liability and Licensee's exclusive remedy shall be the replacement by Licensor of any
magnetic or optical media or user manual not meeting Licensor's Limited Warranty. In
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addition, while not warranting that the operation of the Licensed Software Products will
be uninterrupted or error free, Licensor will, as provided in Section 7 of this Agreement,
assist the Licensee in the installation and maintenance of the Licensed Software Products
and will supply the Licensee with updated versions of the Licensed Software Products as
they are published by Licensor.
10.2 Damages Limitation. LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF
DATA OR LOSS OF PROFIT) ARISING OUT OF THIS AGREEMENT OR WITH
RESPECT TO THE INSTALLATION, USE, OPERATION, OR SUPPORT OF THE
LICENSED SOFTWARE PRODUCTS OR ANY UPDATE OF THE LICENSED SOFTWARE
PRODUCTS EVEN IF LICENSOR HAS BEEN APPRISED OF THE POSSIBILITY OF
SUCH DAMAGES.
10.3 Limitation of Any Recovery. Subject to Section 14 of this Agreement, Licensee specifically
agrees that any liability on the part of Licensor arising from breach of warranty, breach of
contract, negligence, strict liability in tort, or any other legal theory shall not exceed
amounts paid by Licensee in fees for the use and maintenance of the Licensed Software
Products.
11. Relationship of the Parties
11.1 For purposes of this Agreement, Licensee is not an agent of Licensor, and Licensee has no
express or implied authority to act on behalf of or make any representations whatsoever
on behalf of Licensor. Licensor has no right to control any activities of Licensee outside the
terms of this Agreement.
12. Default and Termination
12.1 Procedure. Except for the immediate termination provided by Section 12.2 below, in the
event either party defaults in any obligation in this Agreement, the other party shall give
written notice of such default, and, if the party in default has not cured the default within
sixty (60) days of the notice, the other party shall have the right to terminate this
Agreement.
12.2 Immediate Termination. Upon the occurrence of any act which under Sections 3.1 or 5.2
of this Agreement constitutes Licensee's material breach of this Agreement, this License
Agreement shall immediately terminate and the provisions of Section 12.3 below shall
immediately be invoked.
12.3 Effect of Termination. Upon termination of this Agreement for any reason, the license
granted under this Agreement to use the Licensed Software Products is immediately
revoked. Within five (5) days after the termination of this Agreement for any reason,
Licensee shall return to Licensor all copies of the Licensed Software Products, all updates,
and all user manuals or other related documentation in Licensee's possession. In the
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Project Deliverables
Periscope will deliver the following products and services to City as part of the project:
The following licensed software: BuySpeed Online Vendor and Bid Management
Five (5) days on -site product installation and training for Users
Annual software support and maintenance per the Software Maintenance Agreement
(Exhibit B of the Service Agreement)
Project Timeline
We estimate approximately four (4) weeks from the date of the signed contract package to
completion of software installation and training.
A detailed project plan will be provided upon acceptance of City's purchase order. The
schedule for the deliverables is aggressive and contingent on no material changes to the overall
scope of the project. If Periscope determines that the scope of work or the target dates will
materially change, we will immediately notify City of the potential changes.
Project Costs
The costs of the project are based on the following discounted prices:
1. Software License
a. BuySpeed Online Vendor $ 20,000.00
b. BuySpeed Online Vendor Management $ 25,000.00
2. Professional Services
a. Five (5) days Installation and user training $ 7,300.00
Total Cost of Products and Services $ . _52,300.00
3. Annual Software Support and Maintenance $ $8,100.00
Annual software and maintenance of $8,100.00 will be billed and due on the yearly anniversary
of installation or ninety (90) days after delivery of the Licensed Software Product whichever
occurs first.
Most Periscope clients also budget for additional customized programming and services. This
provides for Periscope to assist with developing custom document formats, financial system
interface, and other unique requirements. This is usually handled on a separate blanket
purchase order and expended as needed. Programming services for these custom
modifications are billed at $95 - $150 per hour.
-2-
900 Congress Avenue, Suite 400
Austin, Texas 78701
512.472.9062
FAX 512.472.9504
alternative, upon request of Licensor, Licensee shall destroy all such copies of the Licensed
Software Products, all updates, and all user manuals, and shall certify in writing that they
have been destroyed. TERMINATION SHALL NOT RELIEVE THE LICENSEE AND
AUTHORIZED USERS OF THEIR OBLIGATIONS REGARDING THE
CONFIDENTIALITY OF THE LICENSED PRODUCT AND UPDATES.
12.4 Payments Not Excused. Without limiting any of the provisions contained in this Section,
in the event of termination as a result of the Licensee's failure to comply with any of its
obligations under this Agreement, Licensee shall continue to be obligated for any
payments due as of the date of termination. Termination of the license shall be in addition
to and not in lieu of any equitable remedies available to Licensor.
13. Indemnity
13.1 Licensor, at its own expense, will defend any action brought against Licensee to the extent
that it is based on a claim that the Licensed Software Products or any update of the
Licensed Software Products used within the scope of this Agreement infringes upon any
patent, copyright, license, trade secret, or other proprietary right, provided that Licensor is
immediately notified in writing of such a claim. Licensor shall have the right to control the
defense of all such claims, lawsuits, and other proceedings. In no event shall Licensee
settle any such claim, lawsuit, or proceeding without Licensor's prior written approval.
Licensor shall have no liability for any claim under this Section if a claim for patent,
copyright, license, or trade secret infringement is based on the use of a superseded or
altered version of the Licensed Product if such infringement would have been avoided by
use of the latest unaltered version of the Licensed Product available as an update. The
provisions of the foregoing sentence shall apply even if the Licensee has elected to forego
continuation of its technical support and Annual Maintenance Service from Licensor as
provided for in Section 7 of this Agreement.
14. Term of License
14.1 This License granted by this Agreement is effective on a perpetual basis from the date of
its execution by both parties unless it is terminated by either party because of the default
of the other party in any obligation under this Agreement.
15. General
15.1 Purchase Order. In the event of any conflict between the terms and conditions of this
Agreement and the terms and conditions of any purchase order or other contractual
document, the terms and conditions of this License Agreement shall control relative to the
subject matter hereof.
15.2 Severability. If any provision of this Agreement is invalid under any applicable statute or
rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement
shall be valid and enforceable to the maximum extent possible.
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15.3 Assignment. Licensee may not assign or sublicense its rights, duties, or obligations under
this Agreement to any person or entity, in whole or in part, without the prior written
consent of Licensor.
15.4 Assumption by Successor to Licensor. In the event of the acquisition of Licensor's
business, software, or both by a third party, Licensor agrees to make such an acquisition
subject to the assumption of the terms of this Agreement by the third party.
15.5 Waiver. The waiver or failure of Licensor to exercise in any respect any right provided for
in this Agreement shall not be deemed a waiver of any further right under this
Agreement.
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EXHIBIT B
SOFTWARE MAINTENANCE AGREEMENT
THIS SOFTWARE MAINTENANCE AGREEMENT ("Agreement") is entered into as of
�(. 2002 between Periscope Holdings, Inc., a corporation formed under the
laws of the State of Delaware, with its principal offices at 900 Congress Avenue, Suite
400, Austin, Texas 78701-2437, and Fort Collins, Colorado ("Customer"), with its
principal place of business at PO Box 580, 300 LaPorte Ave., Fort Collins, Colorado
80522.
WHEREAS, Customer desires to procure software maintenance services from Periscope
from time to time; and
WHEREAS, Periscope desires to provide such services to Customer on the terms set
forth below;
FOR AND IN CONSIDERATION OF the premises and mutual agreements herein,
Periscope and Customer agree as follows:
1. Maintenance Services.
1.1 Definitions in the Software License Agreement apply herein. Periscope shall
provide for Customer remedial and preventative maintenance services
("Maintenance Services") to keep the most current release of the Licensed Software
Product(s) specified in the Software License Agreement ("SLA"), in good
operating condition.
1.2 Periscope will provide available telephone assistance to Customer between 8:00
a.m. and 5:00 p.m. CST, Monday through Friday, excluding Periscope -recognized
company holidays. Periscope will consult with Customer for a reasonable amount
of time by telephone to assist Customer in the use of the Software.
1.3 Periscope will provide appropriate assistance to Customer within a reasonable
period after Customer adequately describes a Licensed Software Product and/or
Documentation problem to Periscope's Customer Support Group. Such assistance
will be at Periscope's expense where it determines that the reported problem is
due to defects in an unaltered, most current version of a Licensed Software
Product or its Documentation. If Periscope determines that the reported problem
is not due to a Licensed Software Product or Documentation's defect, and if
Customer requests and Periscope agrees to provide the requested service,
Customer agrees to pay Periscope's then current prices for services Periscope
provides to resolve the problem.
1.4 Periscope will provide Customer with all versioned upgrades to the Licensed
Software Product, which are developed and made available at no charge to other
Licensees during the maintenance period.
1.5 If Customer makes modifications, interfaces, and/or other changes to the Licensed
Software Product and/or Documentation as permitted under the SLA, Customer
shall promptly inform Periscope in writing and provide such information as
Fort Collins Software Maintenance Agreement.doc
Periscope determines necessary to properly maintain the Licensed Software
Product and Documentation. If more than thirty-five (35) percent of the programs
of the Licensed Software Product listed in the Software License Agreement are
modified, then the maintenance period for that Licensed Software Product shall
expire.
1.6 Periscope's obligation to provide Maintenance Services pursuant to this agreement
is dependent upon:
(i) The existence of a valid SLA in effect between Periscope and Customer;
(ii) Customer's continued good repair of the Designated Equipment; and
(iii) The performance by Customer of all of its obligations as set forth in the SLA
and in this agreement.
1.7 Periscope shall not be obligated to provide Maintenance Services pursuant to this
Agreement that are required by any of the following:
(i) Abuse, misuse, accident, neglect; or
(ii) Repairs, alterations, and/or modifications which are not permitted under the
SLA and which are not performed by Periscope or its agents; or
(iii) Use of materials not meeting Periscope's requirements;
(iv) Use of the Licensed Software Product for other than the intended purpose for
which licensed and designated; or
(v) Malfunction, modification, or relocation of the Designated Equipment from the
Designated Sites; or
(vi) Where inadequate backups are supplied.
1.8 Periscope may refuse to provide Maintenance Services where, in Periscope's
opinion, a condition exists that represents a hazard to the safety of its employees
or agents.
2. Initial Term; Commencement; Renewal.
2.1 This Agreement is intended to commence at the time of delivery of the related
Licensed Software Product(s). Therefore, Maintenance Services shall commence on
the first business day following software installation, or ninety (90) days after
delivery of the Licensed Software Product, whichever shall occur first, subject to
the approval of Periscope and payment in advance of any applicable fee(s). This
Agreement shall have an initial term of one (1) year, and shall renew for successive
twelve (12) month periods unless terminated in writing by either party at least
thirty (30) days prior to the anniversary date of commencement of Maintenance
Services or terminated by Periscope according to Section 9.1. If there has been any
lapse of Maintenance Services, such Maintenance Services will commence only
after an evaluation by Periscope of Customer's current status and, if necessary,
updating of the Licensed Software Product(s) to a serviceable revision. Customer
shall pay Periscope's software update charges where applicable. Maintenance
Services renewal is contingent on current payment of maintenance fees, Customer
not being in default hereunder or under the SLA, and a valid Customer purchase
order.
Fort Collins Software Maintenance Agreement.doc 2
3. Prices and Terms of Payment
3.1 The prices set forth in the Product Quotation or other Arrangement Letter apply to
the initial term. Periscope will advise Customer at least thirty (30) days prior to the
expiration of a term of the prices applicable to the subsequent term. Each annual
installment is due and payable in advance, net thirty (30) days from invoice date.
4. Additional Services
4.1 If Periscope agrees to perform services requested by Customer, which are not
included as a part of this Agreement, such services shall be billed to customer at
prices and terms determined by Periscope in accordance with the Service
Agreement.
5. Updates and New Products
5.1 Updates, consisting of one copy of modifications and improvements to each
Licensed Software Product and/or Documentation, which are provided to other
licensees of the Licensed Software Product and which Periscope determines are
required to achieve the specifications published by Periscope for the Licensed
Software Product and/or Documentation will be provided at no additional cost.
Customer acknowledges that Periscope will maintain only the most current
version of the Licensed Software Product. Periscope shall maintain prior versions
until the earlier of six (6) months from the release of each new versioned release, or
termination of this agreement. New products are determined and defined solely by
Periscope and are not covered by fees already paid by Customer.
6. Excluded Services
6.1 Periscope does not itself provide hardware maintenance unless pre -arranged for a
fee. In addition, services connected with relocation of the Licensed Software
Product from the Designated Equipment or reconfiguration of same or Customer -
induced problems associated with the Designated Equipment are excluded. The
cost of tools, supplies, accessories, media, and other expendables required by
Periscope to perform the Maintenance Services are excluded.
7. Customer Responsibilities
7.1 Customer shall:
(i) Notify Periscope promptly by telephone or email of Licensed Software
Product problems and provide follow-up reports in writing. Periscope will
confirm receipt of any electronic problem notification within twenty-four
(24) hours of receipt and, in the absence of such a confirmation, Customer
shall promptly re -transmit such report;
Fort Collins Software Maintenance Agreement.doc 3
(ii) Allow Periscope full and unrestricted access to all Designated Equipment at
the Designated Sites and other communication facilities and provide
Periscope reasonable workspace and storage and other normal and
customary facilities;
(iii) Provide Periscope with reasonable assistance as requested and insure that
an employee of Customer is present during Service;
(iv) Provide sufficient support and test time on Customer's computer system to
duplicate the problem, certify that the problem is due to the Licensed
Software Product and, when repairs are complete, certify that the problem
has been repaired;
(v) Provide sufficient data to Periscope to reproduce the problem on another
computer at Periscope's customer support center. Periscope will retain a
copy of the data to use for validation of future releases of Periscope
Products unless specifically directed not to do so in writing by Customer.
8. Relocation of Designated Equipment
8.1 Customer shall notify Periscope in writing not more than thirty (30) days prior to
moving the Designated Equipment from the Designated Sites as to its intended
new location. Periscope shall be under no obligation to provide any services under
this Agreement during or as a result of such relocation.
9. Termination
9.1 Either party may terminate this Agreement by written notice to the other party not
more than thirty (30) days prior to the anniversary of the commencement of
Maintenance Services hereunder. Periscope may terminate this Agreement
immediately upon default by Customer hereunder or under the SLA. Where a new
version of a Licensed Software Product has been offered to Customer, Periscope
may terminate Maintenance Services for the old version of such Licensed Software
Product under this Agreement six (6) months after first commercial shipment to
Customer of such new version if Customer has not installed such version.
10. Assignment
10.1 Customer may not assign, delegate, or subcontract any portion of its rights, duties,
or obligations under this Agreement to any person or entity, in whole or in part,
without the prior written consent of Periscope.
11. Warranty_
11.1 IN CONNECTION WITH THE SERVICES RENDERED AND COMPUTER
SOFTWARE AND DOCUMENTATION SUPPLIED UNDER THIS AGREEMENT,
PERISCOPE MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING,
Fort Collins Software Maintenance Agreement.doc 4
WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE OR OF MERCHANTABILITY OR OF NON -INFRINGEMENT.
12. Liability
12.1 PERISCOPE'S CUMULATIVE LIABILITY UNDER THIS AGREEMENT FOR
ALL CAUSES OF ACTION SHALL BE LIMITED TO AND NOT EXCEED
THE MAINTENANCE SERVICES FEE PAID BY CUSTOMER, REGARDLESS
OF WHETHER PERISCOPE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR THAT ANY REMEDY SET FORTH HEREIN FAILS OF
ITS ESSENTIAL PURPOSE OR OTHERWISE PERISCOPE SHALL NOT BE
LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES,
LOSS OF PROFITS, INTERRUPTION OF BUSINESS, OR FOR ANY OTHER
SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER
CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. CUSTOMER
ACKNOWLEDGES THAT THE MAINTENANCE FEE REFLECTS THIS
ALLOCATION OF RISK.
Fort Collins Software Maintenance Agreement.doc 5
Payment Schedule
The following payment schedule applies for total cost of products and services: Fifty percent
(50%) due at signing of contract, thirty percent (30%) due upon completion of on -site product
installation and 20% due upon user acceptance. User acceptance not to exceed 30 days.
The following schedule applies for Annual Off -Site Support and Maintenance: City will be
invoiced annually, thirty days prior to the anniversary of the Installation Date. Payment terms
are net 30 days from the date of invoice.
Software Terms
Under the terms of this agreement, Periscope agrees to provide the software licenses, and
software maintenance as identified in the Project Deliverables section at the prices detailed in
the Project Costs section. As part of the agreement, Periscope grants City a non -transferable
and non-exclusive license to use the software products according to the Software License
Agreement (Exhibit A of the Service Agreement).
Upon your signature as acceptance, this letter will constitute a work package and will serve as
Appendix C to our master Service Agreement of February , 2003.
This arrangement is subject to revision, based on either (i) unforeseen requirements as
identified in functional or technical analysis, or (ii) upon scope changes identified by City
during the course of the project. In either case, Periscope will notify City immediately and will
seek written approval from City according to sections 3.1 and 3.2 of the Service Agreement.
We appreciate the opportunity to partner with City of Fort Collins during this critical and
exciting phase. If you have any questions regarding this arrangement, please feel free to call
me at (512) 472-9062.
Very truly yours,
Forrest Simonton
Director
Periscope Holdings, Inc.
City
By
Title
Date
-3-
900 Congress Avenue, Suite 400
Austin, Texas 78701
512.472.9062
FAX 512.472.9504
SERVICE AGREEMENT
THIS AGREEMENT is entered into as of M W 01 6 2003 between Periscope
Holdings, Inc., a corporation formed under the laws of the State of Delaware, with its
principal offices at 900 Congress Avenue, Suite 400, Austin, Texas 78701-2437
("Periscope") and City of Fort Collins, Colorado ("Client"), with its principal place of
business at PO Box 580, 300 LaPorte Ave., Fort Collins, Colorado 80522.
WHEREAS, Client desires to procure certain services from Periscope from time to time;
and
WHEREAS, Periscope desires to provide such services to Client on the terms set forth
below;
FOR AND IN CONSIDERATION OF the premises and mutual agreements herein,
Periscope and Client agree as follows:
1. Services.
1.1 Periscope shall perform for Client the Services specified in one or more
Appendices to this Agreement (in the form of a Software License Agreement,
Software Maintenance Agreement, and Arrangement Letters signed by both
parties), each of which will be attached hereto and made a part hereof. Each
engagement by Periscope to provide Services to the Client will be described in an
Arrangement Letter agreed upon by the Client and Periscope and shall contain
any assumptions related to the Services. In the event of a conflict between any
term of this Agreement and an Arrangement Letter, the terms of the Arrangement
Letter shall prevail.
2. Client Responsibilities.
2.1 In connection with Periscope' s provision of the Services, Client shall perform
those tasks and assume those responsibilities specified in the relevant Software
Maintenance Agreement and Arrangement Letters ("Client Responsibilities")
Client understands that Periscope's performance is dependent on Client's timely
performance of Client Responsibilities hereunder and timely decisions and
approvals by Client. If Periscope's performance is adversely affected or delayed
by Client's failure to timely perform Client Responsibilities, Periscope will
promptly notify Client in writing thereof. Periscope shall be entitled to rely on all
decisions and approvals of the Client in connection with the Services which are
made in a writing signed by Client's designated representative; changes in
decisions and approvals are subject to Section 3.
Fort Collins Service Agreement.doc
3. Changes in Scope.
3.1 A change to or within the scope of the Services as described herein or to a
condition agreed to in this Agreement shall be considered a scope change ("Scope
Change") for purposes of this Agreement. A Scope Change may occur as a result
of, but not limited to, the following: (i) any Client act or omission which causes a
material delay; (ii) any material changes to the business plan or direction; (iii)
during implementation, any material change to the company's stated direction;
Scope Changes shall be made only in a writing executed by authorized
representatives of both parties. Periscope shall have no obligation to commence
work in connection with a Scope Change until the parties mutually agree as to the
change in Periscope's charges resulting from a particular Scope Change, a change
in schedule and/or other terms and conditions of this Agreement; provided,
however, that Periscope shall provide Client with written notice prior to
commencing work in connection with any Scope Change.
3.2 If a Scope Change will result in an increase in Periscope's charges, then Periscope
shall provide Client with a target estimate of the charges for performance of such
additional work that is required by the Scope Change (the "Additional Services").
The estimate shall include charges for Periscope's fees at the rates set forth in the
relevant Arrangement Letters and for the anticipated reimbursable expenses
associated with such Additional Services. Client shall accept or reject in writing
Periscope's estimate for the Additional Services. If authorized by Client,
Periscope shall perform the Additional Services and invoice Client for the actual
fees and Reimbursable Expenses incurred in connection with the Additional
Services. Periscope shall also advise Client if a Scope Change will adversely affect
quality and timeliness of the Services to be performed by Periscope and will
estimate the extent of impact to the Services caused by the Scope Change together
with the corresponding fee estimate.
3.3 Each party shall notify the other party in writing as soon as possible after
determining that some act or omission by Client may cause a delay in the project
that could result in a charge for a Scope Change. If such notice is from Periscope,
the notice shall describe the problem anticipated to cause a delay and propose
how Client may conform the project to the schedule, if possible.
3.4 Periscope's ability to provide the Services in accordance with the requirements of
this Agreement regarding quality, timeliness and cost, is conditioned upon: (1) no
material Scope Changes to the Services from the relevant Arrangement Letters; (ii)
the completeness, truth and accuracy of all information provided by Client to
Periscope in connection with the Services; (iii) Client's satisfactory and timely
performance of its obligations under this Agreement, including, without
limitation, the performance by Client team members of their assigned tasks in a
professional and workmanlike manner; (iv) Client's satisfaction of such other
conditions to which Services agreed to be performed hereunder are subject; and
(v) the validity of the assumptions upon which the scope of the Services agreed to
Fort Collins Service Agreement.doc 2
be performed hereunder are based. Periscope will promptly notify Client in
writing if any of the conditions set forth above have occurred and estimate the
extent to which the quality, timeliness and cost of the Services will be adversely
impacted as a result thereof.
4. Payment for Services and Expenses.
4.1 Client shall pay Periscope for the Services as defined in the applicable
Arrangement Letters.
4.2 Except as the parties provide otherwise in the applicable Arrangement Letters,
Client will compensate Periscope for its services under this Agreement on a time -
spent basis. Periscope will submit its invoices on the last day of each calendar
month covering the period from the first day through the last day of the current
month, or upon completion of the project, whichever comes first.
4.3 Each invoice shall be payable upon receipt. Any invoice remaining unpaid for
more than 30 days (or the payment period specified in the relevant Arrangement
Letters) from receipt shall accrue interest from the date of receipt until paid, at a
rate equal to the lesser of one and one-half (1.5 %) percent per month or the
highest rate allowed by law. In the event of any dispute with regard to a portion
of an invoice, the undisputed portion shall be paid as provided herein. Invoices
shall provide reasonable detail concerning the services performed, identify time
spent by each assigned Periscope employee, and the percentage of project
completion. Periscope shall provide Client with a schedule identifying the hourly
rates for Periscope personnel performing Services hereunder, updating such
schedule on a regular basis.
4.4 Except as the parties provide otherwise in the applicable Arrangement Letters,
Periscope shall be reimbursed by Client for all reasonable expenses incurred by
Periscope in the performance of the Services, including, but not necessarily limited
to, travel and lodging expenses, communications charges and computer time and
supplies. Periscope shall promptly furnish receipts and other evidence of such
reimbursable expenses as Client may reasonably request.
5. Work Product.
5.1 Subject to Periscope's right to retain copies of its work papers as specified in
Section 7, upon final payment for the Services performed pursuant to the
applicable Arrangement Letters, all original written materials originated and
prepared for Client by Periscope pursuant to this Agreement ("Owned Materials")
shall belong exclusively to Client. The foregoing notwithstanding, except upon
Client termination of this Agreement for cause, Client agrees that it will not
Fort Collins Service Agreement.doc 3
transfer or allow access to or use of the Owned Materials by any other parties than
by the Client without consent of Periscope.
5.2 Except as set forth in Sections 6 and 7, Periscope and Client shall be free to use its
general knowledge, skills and experience and any ideas, concepts, know-how, and
techniques related to the scope of and used in the course of providing the
Services.
6. Pro rp ietary Materials.
6.1 In the course of performance hereunder, Periscope may use (and may authorize
Client personnel to use in the performance of Client Responsibilities) proprietary
materials, tools and methodologies known as "Solution Construction Aids"
("SCAs"), which will be identified by Periscope. SCAs are Periscope Confidential
Information for purposes of Section 7. If Periscope authorizes the Client to retain
any SCA, Client may use such SCAs only for internal business purposes and may
not use them for the benefit of others.
7. Confidential Information.
During the course of the Services for Client, each party may be given access to
information that relates to the other's past, present, and future research,
development, business activities, products, services, and technical knowledge
("Confidential Information"). In connection therewith, the following subsections
shall apply:
7.1 The Confidential Information of the other party may be used by the receiver only
in connection with the Services or as may otherwise be provided herein;
7.2 Each party agrees to protect the confidentiality of the Confidential Information of
the other. Access to the Confidential Information shall be restricted to those of
Periscope's and Client's personnel engaged in a use permitted hereby;
7.3 The Confidential Information may not be copied or reproduced without the
discloser's prior written consent;
7.4 All Confidential Information made available hereunder, including copies thereof,
shall be returned or destroyed upon the first to occur of (a) completion of the
Services or (b) request by the discloser. Periscope may retain, however, subject to
the terms of this Section, an archival copy of the Confidential Information
required for compliance with its quality assurance requirements;
7.5 Nothing in this Agreement shall prohibit or limit either party's use of information
(including, but not limited to, ideas, concepts, know-how, techniques, and
methodologies) (i) previously known to it without obligation of confidence,
Fort Collins Service Agreement.doc
(ii) independently developed by it, (iii) acquired by it from a third party which is
not, to its knowledge, under an obligation of confidence with respect to such
information, or (iv) which is or becomes publicly available through no breach of
this Agreement; and
7.6 In the event either party receives a subpoena or other validly issued
administrative or judicial process requesting Confidential Information of the other
party, it shall provide prompt notice to the other of such receipt. The party
receiving the subpoena shall thereafter be entitled to comply with such subpoena
or other process to that extent required by law.
8. Warran
8.1 Periscope warrants that its Services will be performed in a professional and
workmanlike manner in accordance with applicable professional standards and
shall reperform any work not in compliance with this warranty brought to its
attention within a reasonable time after that work is performed.
8.2 EXCEPT AS THE PARTIES MAY EXPRESSLY PROVIDE IN ANY
ARRANGEMENT LETTERS HERETO, THE PRECEDING IS PERISCOPE'S ONLY
WARRANTY CONCERNING THE SERVICES AND ANY WORK PRODUCT,
AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND
REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY OR OTHERWISE.
9. Personnel.
9.1 Each party agrees to assign a project manager who shall be that party's
representative and upon whose decisions and written orders each party may rely
as binding.
9.2 Either party may request in writing replacement of an employee of the other
party assigned to perform Services under this Agreement if the requesting party
believes that such employee's performance has been deficient, stating in the
notice the basis for such request. The employing party shall have an opportunity
to correct such deficiencies. If the employing party cannot correct such
deficiencies within a reasonable period of time, the employing party shall
replace the identified individual.
9.3 To the extent permissible under applicable state law, neither party shall solicit or
hire any of the other's employees who are assigned to the project during the term
of this Agreement and for a period of six (6) months following expiration or
termination of this Agreement without prior written notice to the other party.
Fort Collins Service Agreement.doc 5
10. Independent Contractor.
10.1 In the performance of Services, Periscope and its employees shall act solely as an
independent contractor and nothing herein shall at any time be construed to
create the relationship of employer and employee, as between Client and
Periscope or Client and Periscope's employees. Periscope and its employees shall
have no right or authority, and shall not attempt, to enter into any contract,
commitment, or agreement, or incur any debt or liability, of any nature, in the
name of or on behalf of Client, its subsidiaries, or affiliates.
10.2 Periscope's employees shall not be entitled to any of the customary employee
fringe benefits provided by Client to its employees, including but not limited to
employee pension and welfare benefit plans.
11. Limitation on Liability.
11.1 The limit of Periscope's liability (whether in contract, tort, negligence, strict
liability in tort or by statute or otherwise) to Client or to any third party
concerning performance or non-performance by Periscope, or in any manner
related to this Agreement, for any and all claims shall not in the aggregate exceed
the fees and expenses paid by Client to Periscope hereunder with respect to the
Arrangement Letters involved. Client's exclusive remedy for any claim arising
out of these arrangements shall be for Periscope, upon receipt of written notice, to
use its best efforts to cure the breach at its expense within a reasonable period of
time, and failing that, payment in the amount of the lesser of the (i) fees paid to
Periscope with respect to the Arrangement Letters involved, or (ii) actual damages
caused by such uncured breach by Periscope.
11.2 In no event shall either party be liable for consequential, incidental or punitive
loss, damage or expenses (including lost profits or savings) even if it has been
advised of their possible existence. Any action by either party must be brought
within two years after the cause of action arose.
11.3 No proceeding, regardless of form, arising out of this Agreement may be brought
by either party more than one (1) year after the existence of the cause of action has
become known to the party injured; except that (i) proceedings related to violation
of any duty to protect Confidential Information may be brought at any time and
(ii) proceedings for nonpayment must be brought within two (2) years from the
date the last payment was due.
12. Termination.
12.1 Either party may, upon giving thirty (30) days written notice identifying
specifically the basis for such notice, terminate this Agreement or any
Fort Collins Service Agreement.doc 6