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HomeMy WebLinkAboutJDE JD EDWARDS - CONTRACT - RFP - P620 FINANCIAL APPLICATIONS SOFTWAREJDEdm ards' ADDENDUM TO THE One Technology Way SOFTWARE LICENSE AGREEMENT Denver, Colorado 80237 Customer City of Fort Collins A/B #449030 Address 256 West Mountain Avenue Fort Colllins, CO 80521_ This Addendum is made by and between J.D. Edwards World Solutions Company ("J.D. Edwards") and Customer in consideration of their mutual promises and subject to its Terms and Conditions. This Addendum amends the Software License Agreement ("Agreement") dated September 30, 1997 . by and between J.D. Edwards and Customer by its Terms and Conditions. Section (11) SOFTWARE PROTECTION PROCEDURES of Attachment O is hereby modified by changing the deployment ratio from ".6 to 1" to ". 3 to 1." THIS ADDENDUM, INCLUDING THE AGREEMENT OF WHICH IT IS A PART, IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS ADDENDUM AND THE AGREEMENT. Notwithstanding anything to the contrary in the Agreement, in the event of a conflict between the terms and conditions of this Addendum and those contained within the Agreement, the terms and conditions of this Addendum shall prevail. All other terms and conditions remain unchanged and are ratified hereby. THIS ADDENDUM SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY CUSTOMER AND ACCEPTED BY AN AUTHORIZED REPRESENTATIVE OF J.D. EDWARDS AT ITS PLACE OF BUSINESS. Accepted by J.D. Edwards World Solutions Company and effective as of �C7 2 9 1,998 19 J.D. W S OR SOLUTIONS CO. By uthorized Signature) , , iPc °uTypeam u rerGl I.1an der (Title) By execution, signer certifies that signer is authorized to execute this Addendum on behalf of Customer CU MER By wC IL (Authorized Signature) JAPtA€51?, c» (Print or Type Name) DVWcroA iJr- Pu�c,��tS��� �- Page 1 of 1 Confidential ATTACILMENT A - Suite Prici Cl� Notes (1) For each Software Suite selected. each listed orcreouisite Software Suite must also be sciected. Because Software Suites contain Software Applications coat are prerequisites for other Software Applications in that or other Software Suites. Customer should install each licensed Software Suite in its entirety. FAILURE TO LICENSE AND INSTALL PREREQUISITE SOFTWARE SUITES OR SOFTWARE APPLICATIONS WILL VOID ANY AND ALL WARRANTIES. (2) The Licensed Products include the selected Software Suites, the media in which the Software Suites are delivered. and the associated documeoutuoo. (3) Software Suite retuues PAYROLLTAX'"t to be licensed directly from Vertex Svstams. Inc. for an additional fee (4) THE UNMODIFIED SOFTWARE APPLICATION IS INTENDED FOR USE IN THE UNITED STATES OR CANADA AND MAY NOT SUPPORT LOCAL GOVERNMENT REQUIREMENTS OR EMPLOYMENT PRACTICES WITHOUT MODIFICATIONS BY CUSTOMER. (5) The Foundation Software Suite contents the Development Environment Application. Customer agrees not to use the functionality of the DMitipment Environment Application to decvedop and market computer programs which compete with any J.D. Edwards Licensed Products. Customer shall *ndcmiiy J.D. Edwards against any harm or expense (indudina without limit reasonable auoroey's few sad cousequentW damages) arising out of or in connection with the use, marketing, licensing, or sale of any computer programs generated by Customer through the use of the Development Environment Application. NO WARRANTY IS MADE THAT THE DEVELOPMENT ewmoNMENr APPLICATION WILL GENERATE COMPU'nat PROGRAMS Wrm THE CHARACTERISTICS OR.SPEcmcA=NS DESIRED BY CUMUMER OR THAT SUCH GENERATED COMPUTER PROGRAMS WELL L BE ERROR FREE. (6) The Foundation Software Suede contains the WorldVision GUI Application. It includes software provided under license to J.D. Edwin& by Seagull Business Software b.v. THE SEAGULL SOFTWARE APPLICATION CONTAINS SOFIWA -9 PROTECTION PROCEDURES; IF AN ATIMMWr IS MADE TO SIMULTANEOUSLY EXECUTE MORE COPIES OF THE SEAGULL SOFTWARE APPLICATION THAN HAVE BEEN LICENSED OR SET AS A LIMIT FOR THE DESIGNATED PROCESSOR. THESE PROCEDURES WILL PREVENT THE E7hECUTION OF THE UNLICENSED OR ADDITIONAL COPIES. IF THE SEAGULL. SOFTWARE APPLTCATLON IS E MCLTTFD ON AN UNLICENSED PROCESSOR OR WITH A PROCESSOR DATE LATER THAN THE AUTHORIZATION DATE. THESE PROCEDURES WILL ALSO PREVENT THE EXECUTION OF THE SOFTWARE. M The source code for products licensed from third parties may not be released by J,D. Edwards but is placed in escrow by the third party vendor. If a Release Condition in the Escrow Provision is invoked with respect to the third parry vendor. the source code will be released to J.D. Edwards. The J.D. Edwards ISO 9001 registration does not include products licensed from third parties. (8) Transportation Management Base and Load Build are provided under license to I.D. Edwards by faterTraus Logistics Solutions Limited. (9) World RF is provided under ficcum to I.D. Edwards by Dares Systems International. (10) Electronic Commerce includes software under license to J.D. Edwards from Promotion Corp. THE SOFTWARE APPLICATION CONTAINS DISABLING PROCEDURES. IF AN ATnwn IS MADE TO EXECUTE THE SOFTWARE APPLICATION ON AN UNUCENSED PROCESSOR OR WITH A PROCESSOR DATE LATER THAN THE AUTHORIZATION DATE. THE DISABLING PRO®UREs wiLLPREvEmr ITS EmcE 1TON. (1I) U2XT—YPZ.- A Customer must select a User type for which License Fees are paid. Option 1: A'!Coneurrent User" shall be defend as a individual with an assigned "user id" which executes an application contained in a Licensed Product either through a menu selection, fast path. or hidden selection. A User will be counted as a Concurrent User until the User signs off the system. refreshes the library fist or essxa Hidden Sdecdon 30. Multiple CrJMW at sessions on the same Designated Ptomasor Utilizing the same "user id" initiated from the same workstation shag be counted as one Comment User. However sessions initiated by one "user id" on more than one workstation. or by mere than one 'tiger id" on the same workswion. shall W counted as multiple Conawreot Users. The Loral number of Concurrent Users simultommudy rising the Licensed Products at anv time may not exceed the Concurmtt Licensed Users. Option 2: A "Nsmsd User" is a User to whom a "war id" ban been assigned on the Designated Protxssmts) allowing him4 w to access the Licensed Products. A Named User is counted as a User regardless of whether hefshe is accessing the Licensed Products at any given time. no total number of Named Users authorized m use one Liooesed. Products at any time may not esceee 'the Named Licensed Users. Option 3: An "Internet User" is a User accessing the Licensed Products via the Internet or Customer's Intranet for inquirjAnfermation purposes only.. An Internet User is counted as a User regrdlese of whether hatshe is accessing the Licensed Products at any given time. The loW number of Internet Users authorized to use the Livened Products at any time may not exceed the Internet Licensed Users. A "T kxased User" is a User for which a License Fee has bow paid. LICENSING OF ANY TOTAL NUMBER OF USERS IS NOT A WARRANTY OR CERTIFICATION THAT J.D. EDWARDS' LICENSED PRODUCTS WILL SUPPORT THAT NUMBER OF USERS ON THE DESIGNATED PROCESSOR TO WHICH THEY ARE ASSIGNED. If the sumher of Licensed Users is decreased by Customer them shall be no miund paid on the License Fees already due or paid. (12) LICENSE OF ADDITTONAL SOFTWARE AND ADDITIONAL USERS: If Customer licenses additional Software Suites. Customer will pay ere Bus License Fee and any increased User Fees. Additiowi Users must be licensed in blocks of we (10) Users. (13) ADDITIONAL SrM FEES: If Customer wishes to install the Licwsed Produce at more than one Geographical Site. Customer shall pay J.D. Edwards' then -current fee for each Additionsi Geographical Site. A Geographical Site includes all Designated Processors (including deployment servers) located at a specific geographical site of Customer. (14) PAYROLL dt HUMAN RESOURCE MANAGEMENT - ACTTVE EMPLOYEES: Payroll and Hutton Resource Management am lieaased based on. the Suite Base Licensed Fee plus it fee for own Active Employee of the Customer. "Active Employees" are thane employees of Customer for which a Form W2 (U.S.) and Form T-4 (Caoeda) are issued utilizing the Licensed Products during a cafandar. year. "Acute Employees" must be licensed in blocks of fifty (50). (15) IDENTIFICATION OF DESIGNATED PROCESSOR(SI: Customer must identify each Designated Processor on which the Licensed Producta are installed and the number of Users tConcutrem or Named). Customer may. upgrade or downgrade the Designated Processor without affecting any fees paid under this Attachment. (16) AUDIT: On J.D. Idwads' written request not mops ftequendy than annually. Customer shall furnish J.D. Edwards with a signed oaa5mfioa (i) verifying that the Licensed Products ate being used pursuant to the provisions of this Agreement and Attachment. including the limitations on User and/or Acura Emplaysesc and (6) listing the locations. models. Total I icwsed Users type of Users ICoaetutent. Named. or latermal and serial nuaubea of the Designated Piece = s) on which the Licensed re Products arun. J.D. Edwards not more 6equwdy than anauaidy and at its own expense. may audit Customers use of the Licensed Products. Any such audit shall be concocted during regular business hours at Customers Seiditim and shag not unreasonably munem with Customers business activities. If a comficam or an audit reveals that Customer has underpaid fens to J.D. Edwards. Customer shall be invoiced for such underpaid fees at J.D. Edwards' then-ourrett list prices 6or the actual number of Users and/or Active Employes, If the undermusi fen exceed Eva perewut (5%) of the Uceuao Fees paid. then Cushomat shag also pay J.D. Edwards' rmsooabla costsvi conduction the sudit PsOJJ2 A751 IM ksf llll.c AT 1CHMENT O - LICENSED PRODI T= 8055 E. Tufts Avenue JDEdmards oneWorld17' -Suite Pricing Deaver, Colorado 80237 Customer City of Fort Collins Address 956 TTacr Mrntritain At. nno Fort ollins e by and between J.D.Edwards World Solutions Company ('J.D. Edwards") and This Attachment O to Software License Agreement ("Attachment") is mad Customer in consideration of their mutual promises and subject to its terms and conditions. This Attachment amends the (check one) A Software License. Services and Maintenance Agreement or ❑ Software License Agreement ('Agreement'), dated , 0_ . Customer agrees to (check appropriate option(s))Ulicense, and/or ❑ upgrade the number of Licensed Users for use on the Designated Processor(s). Applicable notes are on Page Two. The "LICENSE USE" Section of the Agreement is amended by the addition of the following: Customer has the right to use only the Licensed Products specified on this Attachment and any prior Attachments executed by Customer and accepted by J.D. Edwards. Customer shell have no right to use any other Software Suite that may be delivered with the Licensed Products. Such additional Software Suites, however, are proprietary to J.D. Edwards and are subject to the Proprietary Rights and Confidentiality provisions of the Agreement. Licensed Products (1,4,S) (Please mark Software Suites selected): Prerequisites (3) Software Suites M 1 E 2 Hl 3 ❑ 4 13 Q _ Foundation (2) Financial Logistics/Distribution Manufacturing 1 1,2 1,2,3 Total Base Licence Fees User Type Licensed (6): concurrent Fees for Licensed Users (7): S 4,400 X 100 = (User Fee) (Number of Licensed Users) Fees for Additional Geographical Sites (8): (Number of Additional Geographical Sites) X $ = (Additional Geographical Site Fee) Total Software License Fees: Upgrade Allowance discount Net Software License Fees Taxes . Total Install Locations (One or more installations) 1, Fort Collins. CO 1. 3. 4. 5. Suits Ban License Fee $ Xs. S 440 0 S $476,700 ( N/A 1 (96,900 ) $379.800 S $179-800 Dated Processor (9) ISceamd Users Model/Feature/Serial Number for CPU HP9000/TBD 100 6 Total Licensed Users (10,11): 1 no This Attachment, including its terms and conditions and the Agreement, is a complete and exclusive statement of the agreement between the patties, which supersedes all prior or concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to its subject matter. Notwithstanding anything to the contrary in the Agreement, in the event of a conflict between this Attachment and the Agreement, this Attachment shall prevail. All other terms and conditions remain unchanged and are ratified hereby. This Attachment shall not be effective until executed by Customer and accepted by an authorized representative of J.D. Edwards. Accepted b w arid So d e ve By execution, signer certifies that signer is authorized to execute as of this Attachment on behalf of Customer. J. D. E ORLD SOLUTIONS C PANY By B =21i� c 1 ( sort„ (P" W Trp, H-Ma (Rat r Typ. N ) (/1i �'SN, ��,�5�` Director of Purchasing & Risk Mgmt. (Tide) MW A pfuved As TO Form: �f--- Assistant Cit A ney Page 1/2 571.4 IN7 LCATOSTdm ATTACHMENT O - Suite Pn'cinyg-, Notes (I) THE LICENSED PRODUCTS ARE SUBJECT TO THE MINIMUM TECHNICAL REQUIREMENTS PROVIDED BY J.D. EDWARDS TO CUSTOMER FOR THE DATABASE SERVER, SOFTWARE DEPLOYMENT/SOFTWARE DISTRIBUTION SERVER, AND CLIENT PORTIONS OF THE LICENSED PRODUCTS WHICH MUST BE INDEPENDENTLY ACQUIRED AND PROVIDED BY CUSTOMER. THESE ARE MINIMUM TECHNICAL REQUIREMENTS ONLY AND MAY NOT RESULT IN THE ATTAINMENT OF SOME OR ALL OF THE PERFORMANCE OBJECTIVES OF CUSTOMER. THE TYPE OF NETWORK, THE AMOUNT OF TOTAL NETWORK TRAFFIC, AND THE TYPE AND PATTERN OF USAGE OF THE LICENSED PRODUCTS OR OTHER SOFTWARE ON THE NETWORK WILL ALSO IMPACT THE PERFORMANCE OF THE LICENSED PRODUCTS INSTALLED ON SUCH NETWORK. (2) The Foundation Software Suite contains the OneWorld Toolkk Application. Customer agrees not to use the functionality of the Toolkit Application to develop and market computer programs which compete with any J.D. Edwards Licensed Products. Customer shall indemnify J.D. Edwards against any harm or expense (including without limit reasonable attorney's fees and consequential damages) arising out of or in connection with the use, marketing, licensing, or sale of any computer programs generated by Customer through the use of the OneWorld Toolkit. NO WARRANTY IS MADE THAT THE ONEWORLD TOOLKPT WILL GENERATE COMPUTER PROGRAMS WITH THE CHARACTERISTICS OR SPECIFICATIONS DESIRED BY CUSTOMER OR THAT SUCH GENERATED COMPUTER PROGRAMS WILL BE ERROR FREE. (3) For each Software Suite selected, each listed prerequisite Software Suite must also be selected. Because Software Suites contain Software Applications that are prerequisites for other Software Applications in that or other Software Suites. Customer should install each licensed Software Suite in its entirety. FAILURE TO LICENSE AND INSTALL PREREQUISITE SOFTWARE SUITES OR SOFTWARE APPLICATIONS WiLL VOiD ANY AND ALL WARRANTIES. (4) The Licensed Products include the selected Software Suites, the media in which the Software Suites are delivered, and the associated documentation. (5) The source code for products licensed from third parties and included in the OneWorld Software Suites may not be released by J.D. Edwards but is placed in escrow by the third patty vendor. If a Release Condition in the Escrow Provision is invoked with respect to the third party vendor, the source code will be released to J.D. Edwards. The J.D. Edwards iSO 9001 registration does not include products licensed from third parties. (6) USER TYPE: A Customer must select a User type for which License Fees are paid. Option 1: A "Concurrent User" shall be defined as a individual with an assigned `user id" which executes an application contained in a Licensed Product either through a menu selection, fast path, or hidden selection. A User will be counted as a Concurrent User until the User signs off the system, refreshes the library list, or enters Hidden Selection 30 (AS/400). Multiple concurrent sessions on the same Designated Processor utilizing the same `user id" initiated from the same workstation shall be counted as one Concurrent User. However, sessions initiated by one "user id" on more than one workstation, or by more than one 'user id" on the same workstation, shall be counted as multiple Concurrent Users. 'Ilse total number of Concurrent Users simultaneously using the Licensed Products at anytime may not exceed the Concurrent Licensed Users. Option 2. A "Named User" is a User to whom a `user id" has been assigned on the Designated Processor(s) allowing him/her to access the Licensed Products. A Named User is counted as a User regardless of whether helshe is accessing the Licensed Products at any given time. The total number of Named Users authorized to use the Licensed Products at anytime may not exceed the Named Licensed Users. Optiom 3: An "Internet User" is a User accessing the Licensed Products via the Internet or Customer's Intranet for inquiry/information purposes only. An Internet User is counted as a User regardless of whether he/she is accessing the Licensed Products at any given time. The total number of Internet Users authorized to use the Licensed Products at any time may not exceed the Internet Licensed Users. A "Licensed User" is a User for which a License Fee has been paid. LICENSING OF ANY TOTAL NUMBER OF USERS IS NOT A WARRANTY OR CERTIFICATION THAT J.D. EDWARDS' LICENSED PRODUCTS WILL SUPPORT THAT NUMBER OF USERS ON THE DESIGNATED PROCESSOR TO WHICH THEY ARE ASSIGNED. If the number of Licensed Users is decreased by Customer there shall be no refundpaid on the License Fees already due or paid (7) LICENCE OF ADDITIONAi SOFTWARE AND ADDITIONAL USERS: If Customer licenses additional Software Suites, Customer will pay the Base License Fee and any increased User Fees at the then current list price. Additional Users must be licensed in blocks of ten (10) Users at the then current list price for additional Users. (9) ADDITIONAL SITE FEES: If Customer wishes to install the Licensed Products at more than one Geographical Site, Customer shall pay J.D. Edwards' then -current fee for.each Additional Geographical Site. A Geographical Site includes all Designated Processors (including deployment servers) located at a specific geographical site of Customer. (9) IDENTIFICATION OF DESIGNATED PROCESSOR(S): Customer must identify each Designated Processor on which the Licensed Products are installed, including any deployment servers, and the number of Users (Concurrent or Named). Customer may upgrade or downgrade the Designated Processor without affecting any fees paid under this Attachment. (10) AUDIT: On J.D. Edwards' written request, not more frequently than annually, Customer shall furnish J.D. Edwards with a signed certification (i) verifying that the Licensed Products are being used pursuant to the provisions of this Agreement and Attachment, including the limitations on Users; and (ii) listing the locations, models, Total Licensed Users, type of Users (Concurrent, Named, or Internet) and serial numbers of the Designated Processor(s) on which the Licensed Products are run. J.D. Edwards, not more frequently than annually and at its own expense, may audit Customers use of the Licensed Products. Any such audit shall be conducted during regular business horns at Customer's facilities and shall not unreasonably interfere with Customer's business activities. If a certificate or an audit reveals that Customer has underpaid fees to J.D. Edwards, Customer shall be invoiced for such underpaid fees at J.D. Edwards' thenctrreat list prices for the actual number of Users. If the underpaid fees exceed five percent (5%) of the License Fees paid, then Customer shall also pay J.D. Edwards' reasonable costs of conducting the audit. (11) SOFTWARE PROTECTION PROCEDURES: THE LICENSED PRODUCTS CONTAIN PROCEDURES WHICH PREVENT THE LICENSED PRODUCTS FROM BEING DEPLOYED FROM THE SERVER TO A TOTAL OF 'CLIENT PC PLATFORMS GREATER THAN AN AMOUNT SPECIFIED AT THE TIME THE SOFTWARE PROTECTION CODE IS ISSUED. FOR THOSE CUSTOMERS LICENSING UNDER THE NAMED USER OPTION, SUCH AMOUNT SHALL NOT EXCEED THE TOTAL NUMBER OF LICENSED USERS. FOR THOSE CUSTOMERS LICENSING UNDER THE CONCURRENT USER OPTION, SUCH AMOUNT SHALL NOT EXCEED THE TOTAL NUMBER OF LICENSED USERS DIVIDED BY .6 (EXAMPLE: CUSTOMERS WITH 30 CONCURRENT LICENSED USERS WILL BE ABLE TO DEPLOY UP TO 50 CLIENT PC PLATFORMS UNDER THIS AGREEMENT) SUBJECT TO THE RESTRICTIONS OF NOTE 6 ABOVE. INTERNET USERS ARE NOT DEPLOYED AND ARE NOT SUBJECT TO THESE DEPLOYMENT LIMITATIONS. Page 2!2 aM1 I t eATost'1m JUdwards' ATTACHMENT S SERVICES 8055 E. Tufts Avenue Denver, Colorado 80237 Customer City of Fort Collins Addrpcc 256 West Mountain Avenue Fort Collins, CO 80521 This Attachment is trade by and between J.D. Edwards World Solutions Company ("J.D. Edwards") and Customer in consideration of their mutual promises and subject to its terns and conditions. This Attachment supplements and amends the terms and conditions of the (check one) X$ Software License, Services, Maintenance Agreement or ❑ Software Services Agreement ("Agreement"), dated as follows: SERVICES PROVIDED - J.D. Edwards provides to Customer and Customer accepts, subject to the terms and conditions of the Agreement, the Services indicated below: AVAILABLE SERVICES: Customer agrees to pay: I. General Consulting Services: (Installation assistance, custom design and computer ................................................... Billed on time & programming services provided on a time and materials basis. Consulting........................................................... materials basis upon rates vary per hour depending upon the consultant's expertise and product certification level.) . ......................... ............. request of Customer 2. Training: Regular scheduled classes......................................................................................................... Billed at then current (One or more students from Customer will attend a standard, scheduled ME class .................................................... standard rates upon offered to multiple J.D. Edwards clients, and usually held at a J.D. Edwards location.) ..... ............................ ............ : request of Customer Custom classes and/or training................................................................................................................. Billed at then current (One to eight students will attend a class scheduled and conducted solely for Customer, standard rates upon at either J.D. Edwards' or Customer's location.)........................................................................................... request of Customer 3. Specific Consulting Services................................................................................................................... Billed per the engage - (Consulting Services according to mutually agreed to engagement letter, scope of work, or exhibit.) ment letter, scope of .......................................................................................................................I........................... work, or exhibit 4. Solution Assurance............................................................................................................................. $ 64.000 O.D. Edwards has identified cermin milestones or checkpoints during the implementation process ................................. (Due upon execution) which are critical planning or review activities which require J.D. Edwards' direct involvement to achieve the most effective implementation.) 5..................................................................................................................................................... $ Total s 64.000 (Plus taxes where applicable) This Attachment, including its terms and conditions, and the Agreement of which it is a part, is a complete and exclusive statement of the agreement between the parties, which supersedes all prior or concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to its subject matter. Notwithstanding anything to the contrary in the Agreement, in the event of a conflict between this Attachment and the Agreement, this Attachment shall prevail. All other terms and conditions remain unchanged and are ratified hereby. This Attachment shall not be effective until executed by Customer and accepted by an authorized representative of J.D. Edwards at a place of business. Accepted b J.D. Edwards World Solutions Company and effective By execution, signer certifies that signer is duly authorized to execute as of en, QO /— 1997 this Agreement on behalf of Customer J.D. EDW D SOLUTIONS COMPANY By (Autho�riiz/end/'$/,aJ�tA ol //Jo 67 (Print or Type Name) v�? 4:5av- (Title) Page 1/1 Director of Purchasing & Risk Mgmt. (Title) 8/94 xkppiQvt:u AS JU Form: n Assistant City ey 7.3 06/96 LICATS73.DOC ADDENDUM TO THE SOFTWARE LICENSE, SERVICES AND MAINTENANCE AGREEMENT Customer City of Fort Collins Address 256 West Mountain Avenue Fort Collins, CO 80521 J.D. Edwards World Solutions Company 8055 East Tufts Avenue Denver, Colorado 80237 This Addendum is made by and between J.D. Edwards World Solutions Company ("J.D. Edwards") and Customer in consideration of their mutual promises and subject to its Terms and Conditions. This Addendum amends the Software License, Services and Maintenance Agreement, ("Agreement"), by and between J.D. Edwards and Customer by its Terms and Conditions. With respect to professional services rendered under Article 111, SOFTWARE SERVICES, of this Agreement, the following additional terms and conditions shall apply: Contract Period. Each Engagement Letter, Scope of Work, or other exhibit covering professional services shall contain a scope of services and schedule and shall commence upon the d#4e of execution shown on the signature page of that document and shall continue in full force and effect for one (1) year, unless sooner terminated as herein provided. In addition, at the option of.huCustomer, the Agreement may be extended for an additional period of one (1) year at the current prices which shall be provided to the Customer upon request. Additional one (1 enewals may be requested by the customer for a total of four renewal years. In no events Customer request or require J.D. Edwards to submit a scope of work or pricing which would extend into a future renewal period for which the Customer has not contracted. Delay. If either party is prevented in whole or in part from performing its obligations by unforeseeable causes beyond its reasonable control and without its fault or negligence, then the party so prevented shall be excused from whatever performance is prevented by such cause. To the extent that the performance is actually prevented, J.D. Edwards must provide written notice to the Customer of such condition within fifteen (15) days from the onset of such condition. Early Termination by Customer/Notice. Notwithstanding the time periods contained herein, the Customer may terminate this Agreement at any time without cause by providing written notice of termination to J.D. Edwards. Such notice shall be delivered at least fifteen (15) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the following addresses: Customer: Copy to: J.D. Edwards: City of Fort Collins City of Fort Collins J.D. Edwards World Solutions Co. Purchasing Division City Clerk Attention: Legal Department P.O. Box 580 P.O. Box 580 8055 E. Tufts Avenue Fort Collins, CO 80521 Fort Collins, CO 80521 Denver, CO 80237 City of Fort Collins Page 1 of 5 Confidential In the event of early termination by the Customer, J.D. Edwards shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of J.D. Edwards' obligations as defined in the Warranty Section, Article V, GENERAL, Section 4, WARRANTIES, of the Agreement, and are provided such services within the general scope of work. Such payment shall be J.D. Edwards' sole right and remedy for such termination. Customer Reoresentative. The Customer will designate, prior to commencement of the work, its representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the services provided under this agreement. All requests concerning this agreement shall be directed to the Customer Representative. Indeoendent Service Provider. The services to be performed by J.D. Edwards are those of an independent service provider and not of an employee of the Customer. The Customer shall not be responsible for withholding any portion of J.D. Edwards' compensation hereunder for the payment of FICA, Workmen's Compensation or other taxes or benefits or for any other purpose. Warran . J.D. Edwards warrants that all work performed hereunder shall be performed with the highest degree of competence and care in accordance with accepted standards for work of a similar nature. Default. Each and every term and condition of the Agreement and any Attachment, addenda, or other modification to the Agreement which shall be of even date herewith shall be deemed to be a material element of this Agreement. In the event either party should fail or refuse to perform according to the terms of this Agreement, such party may be declared in default thereof. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of thirty (30) days within which to cure said default. In the event the default remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek the appropriate remedy under the Agreement; (b) treat the Agreement as continuing and request specific performance; or (c) avail itself of any other remedy specified within the Agreement. The prevailing party shall be entitled to recover reasonable attorney fees. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire agreement between the parties and shall be binding upon said parties, their officers, employees, agents and permitted assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and permitted assigns of said parties. _Indemnity/insurance. a. J.D. Edwards agrees to indemnify and save harmless the Customer, its officers, agents and employees against and from any and all actions, suits, claims, demands or liability of any character whatsoever brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, result from or occurring in connection with the performance of any service hereunder. b. J.D. Edwards shall take all reasonable precautions in performing the work hereunder to prevent injury to persons and property. City of Fort Collins Page 2 of 5 Confidential c. Without limiting any of J.D. Edwards' obligations hereunder, J.D. Edwards shall provide and maintain insurance coverage naming the Customer as an additional insured under this Agreement of the type and with the limits specified within Exhibit A, consisting of one (1) pages[s], attached hereto and incorporated herein by this reference. J.D. Edwards before commencing services hereunder, shall deliver to the City's Director of Purchasing and Risk Management, 256 West Mountain Avenue, Fort Collins, Colorado 80521 one copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the Customer, which acceptance shall not be unreasonably withheld. Article IV, SOFTWARE UPDATES/SUPPORT LINE, Section 2, ENHANCED PRODUCT EXCHANGE, shall be amended by the addition of the following language at the end of Paragraph (A): Customer shall be entitled to exercise its option under this paragraph one time at no charge. Article V, GENERAL, Section 4, WARRANTIES, Paragraph (A), Sentence 1 is struck and replaced by the following: J.D. Edwards warrants that for a period of eighteen (18) months following the date of actual physical delivery of the Licensed Products to Customer's first designated site, the Licensed Products will perform in all material respects in accordance with the J.D. Edwards Source Published Product Specifications in effect at the date of this Agreement. Article V, GENERAL, Section 6, EXCLUSIVE REMEDIES, Paragraph (A) shall be amended as follows: "six (6) months" is changed to "eighteen (18) months" Article V, GENERAL, Section 7, INDEMNITIES, Paragraph (D), Subparagraph (ii), is amended by inserting the following language after the word "indemnify": "subject to the limits of the law and the charter of the City of Fort Collins". Article V, GENERAL, Section 12, PAYMENT, Paragraph (A), Sentence 2, is struck and replaced by the following: Customer agrees to pay twenty-five percent (25%) of the License Fees upon execution of this Agreement and any Attachment attendant to this Agreement, twenty-five percent (25%), on or before December 31, 1997, twenty-five percent (25%) on or before April 30, 1998, and the remaining twenty-five percent (25%) on or before August 31, 1998. Article V, GENERAL, Section 14, GENERAL, Paragraph (L), Sentence 1 is struck and replaced by the following: Neither party shall publicly announce or disclose the terms and conditions of this Agreement, except as required by law, and except that J.D. Edwards may use Customer's name as a reference in J.D. Edwards' sales calls and in lists of J.D. Edwards' customers. City of Fort Collins Page 3 of 5 Confidential Article V, GENERAL, Section 14, GENERAL, is amended by the addition of the following new Paragraph (0): The order of precedence for interpretation of this Agreement is as follows: (i) Any mutually executed Addendum to this Software License, Services and Maintenance Agreement. (ii) Any mutually executed Attachment to this Software License, Services and Maintenance Agreement. (iii) The Software License, Services and Maintenance Agreement. In the event of a conflict in language between the documents referenced above, the language in the earlier -appearing document above shall govern. In the event of silence in a document on a particular issue, the document appearing next in the sequence above shall govern. Note 5 on Attachment A to the Software License, Services and Maintenance Agreement is amended by inserting the following language after the word "indemnify": "subject to the limits of the law and the charter of the City of Fort Collins". Note 2 on Attachment O to the Software License, Services and Maintenance Agreement is amended by inserting the following language after the word "indemnify": "subject to the limits of the law and the charter of the City of Fort Collins". Sentence 3 of the Payment Section on Attachment U is struck and replaced by the following: Unless cancelled by either party by written notice, no less than thirty (30) days prior to the end of the Period of Coverage, this Agreement and the Period of Coverage shall automatically extend for one (1) year at the then current prices, subject to the annual appropriation of funds by Customer for payment of the fees. THIS ADDENDUM, INCLUDING THE AGREEMENT OF WHICH IT IS A PART, IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PRIOR OR CONCURRENT PROPOSALS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS ADDENDUM AND THE AGREEMENT. Notwithstanding anything to the contrary in the Agreement, in the event of a conflict between the terms and conditions of this Addendum and those contained within the Agreement, the terms and conditions of this Addendum shall prevail. All other terms and conditions remain unchanged and are ratified hereby. City of Fort Collins Page 4 of 5 Confidential THIS ADDENDUM SHALL NOT BE EFFECTIVE UNTIL EXECUTED BY CUSTOMER AND ACCEPTED BY AN AUTHORIZED REPRESENTATIVE OF J.D. EDWARDS AT ITS PLACE OF BUSINESS. Accepted by J.D. Edwards World Solutions Company and effective as of 19 Q2 J.D. EDWARDS WORLD SOLUTIONS CO. By (Authorized Signature) or Type Name) By execution, signer certifies that signer is authorized to execute this Addendum on behalf of Customer CUSTOMER By U1 %cOy (Authorized Signature) _John F. Fischbach (Print or Type Name) City Manager (Title) (A orized Signature) ames B. O'Neill II. CPPO (Print or Type Name) Director of Purchasing and Risk Mot (Title) rY` r (Authorized Signature) gk,;{ - (Print or Type Name) City Clerk (Title) Appr d as to form: (Authorized Sig an e) Came Daoaet` (Print or Type Name) Assistant City Attorney (Title) City of Fort Collins Page 5 of 5 Confidential EXHIBIT A INSURANCE REQUIREMENTS The Service Provider will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Service Provider shall fumish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies, and containing substantially the following statement" "The insurance evidenced by this Certificate will not be cancelled or materially altered, except after ten (10) days written notice has been received by the City of Fort Collins" In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Service Provider, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Service Provider under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on the Service Provider's general liability and automobile liability insurance policies for any claims arising out of work performed under this Agreement. 2. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The Service Provider shall maintain during the life of this Agreement for all of the Service Provider's employees engaged in work performed under this agreement: 1. Workers' Compensation insurance with statutory limits as required by Colorado law. 2. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee. B. Commercial General & Vehicle Liability. The Service Provider shall maintain during the life of this Agreement such commercial general liability and automobile liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial General and Vehicle, shall not be less than $500,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Service Provider shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. JUN-10-99 THU 03:41 PH CITY FT COLLINS ICS DEPT FAX NO. 9702216329 P. 02 JUN 19 199 16:30 FR JD Fl`RDS 303 334 2515 TU y>y'roeec^ 7 r• COLO JDEduard5' ATTACHMENT 0. LICENSED PRODUCTS OneTeehacbgvway QMWorldIm - We Pricing Denver,Cebrado �Z3� Customer city of Port Collins AB# 449030 Address 256 Weal lulouutain Avenue Fort Collins, CO 80621 This Attachment 0 ("Anacbment') to the (check on) Q Softwors I.Krnse Ageeeme t or ® Softc as U"rive, 5etvices and Mebetarstv0 Agreement ("Agreement') is made by and between J.D. Edwards World Solutions Company, J.d. wse;e EunxN Ltd and J.D. Edwm* (Asia Pacific) Pro, IM, ("J.D, B&,, s') and Customer in coneidtratien of their mutual prmnires and subject to its term. and Onditlorra. This Attachment arnmdt the Apwmeea dated September 30, 1997, Clrstoeecr syecs to (check appr*ste opdon(s)) 0 Vetere; and/or 0 upgrade the number of Lieenmd Usots for we on cure Dmipuemd Proansor(q. Applicable notes at on Page Tay. Tho type of Licensed Products delh=W to Customer will be based on the hardware pladbtm(s) listed below far each Install Location The "LICENSE USE" Saadlon of the Agrote N ii emended by the addition of the following'. Castore cr has the riglat to use a* rtu' Liearxad pfeducts specified rrb thle eAtechment and any crier Atladrments executed by Custenler and aorrcptrd by J,D, Edwards, Coxtoatw seam have ffo natal io "'a any Wen, Sohwaav Suite that may be detherrd wtrh the Lkeneod Projects. Such addirlond 5oflwwt Subic haweyar, are proprietary to J.D. Edwards sand are rubf set to the "Pleem y i ighto and CoMdaaaelity ptbWioas of the Acr-mmur. Licensed Products Software Suites ❑ 1 Foundation(4) ❑ 2 Financial ❑ 3 Logisties/Distribmion [j 4 Manufedveing ®5 Human ResouronManoganoot(10) 6 Payroll- United States (10.12) 7 Cmromer somoo Mosraloment System (" CSMS") a ECs ©9 Project Managancnt UserTypei-ieensodp Fees Per Licensed User. S_. X S _ X S X Inga 1 Laratiom (One or more hulaAstions) Suite Bose Prerequisites (2) ueeace Fee S h 1,2 1,2,3 1 1 J 1,2,3,4 1,2,3 1,2 Total Base License Fats (Sy. S Total Licemeded Vswa (7,11); _ S J _ S S _ Taal software lieensc Few: � Net Sottasre License Fete 52iiC Taxes J 5 Tbw Sly Designated Promoter M Lictre ed Users u�aJ rrwwl�i:,.. Cu'el al:r�...l6..l,lwl 4w toil 1. Fort Collins, CO. ABM 449030 D250INP9000 S 2. FortCOMM—, CO, ABM 4490)0 K4d0.NP9000 95 3. y 4. S. C rotas Licensed users ty,ar. IW Licensed User Alldeaticn Table: C'umnuar, agrees that, as of the date of this Attachment, le projection of the location of the Licensed Users specified above is as fbilows (1 i ); J.D. Edwattlo Entity: Customer Vser Locatleadi % of Tad Litemsd User. J.D. Edwards World Solutions Ceenpany The Amatiras (includes North dead Sourh America and the Caribbean) too b. J.D. Edwards Europe, Ltd, BMEA (include Daum Mica. & Middle Fast) '/s J.D, Edwards (Asia Pacific) Pre Led, AsiaPsoitic Tffltalt. 1000/s This Attachment, including its terms and eaMhione and the Agreement, fa a cornplelo sad exclusive statement of.he agree., am umvent the panes respng to m subject Maher, and whlvft mpersedes all prior or oanearreet proposals and Wdertaldings, whaher oral or -Than, and all 000 Cormtanlcalms betwear the Wits relating to iu subject matter_ NawithFmnding anythisg to the contrary in the Avon tom, in the event of a conflict bet men this Allackatnt and fh9 Agmement, this Attachment than prevail. All other tams and evnditioro remain unchsnphd and ate muffed bertby, This Attachment shall not be erncntivc until executed by Customer and socopW by on authorized rryeaseatet yc of 1 D, Edwards. By aecutlon, signer certifies that sigaar Is authorized to accept and By execution, siggnoer certifies that signer Is authatised to execute this execute this Atrocbneet on behalf of J.D. Edwards. Accepted by Amehnunaonbehalf ofCusmnwr. J.D. Edwards tad effective as of, , 19 `� J.MZDWAMSWORLD SOLVnONS09FANY CUSToaIER - Ih.1rDWARD$EUItOPE,LTD, OV2019 7 a?—Tgal •—f J.D. EDWARDS (ACA PACIPI(C) PTE, LTD. "( By ) Autlo tad sisrh.w /O//C/ �) �r r,Mw •+•1 tan., Ctpetihe 11" rd LaeaNf WaSam" 01"My Meld fah aTraCrataart 0 eo ply /1 lb. slVxrM CMAasxNl r�J•,.-!U`/� JDEdvmrds' ATTACHMENT U 8053 E. Tufts Avenue Maintenance Services - Suite Pricing Deaver, Colorado 9=7 Customer City of Fort Collins Address 256 West Mountain Avenue Fort Collins, CO 80521 This Attachment is made by and between J.D. Edwards World Solutions Company ("7.D. Edwards") and Customer in consideration of their mutual promises and subject to its terms and conditions. This Attachment supplements and amends the terms and conditions of the (check one) 9 Software License, Services and Maintenance Agreement or 13 Maintenance Agreement ("Agreement'), dated 19_, as follows: Maintenance Services - J.D. Edwards provides to Customer and Customer accepts, subject to the terms and conditions of the Agreement, the Maintenance services indicated below: Start Date: upon execution Period of Coverage: one ( 1 1 year(s). PREMIER Maintenance, if chosen, is also available for a Period of Coverage, which is the same as the Period of Coverage for Standard Maintenance services unless otherwise indicated in writing. Customer may not elect to exclude any of the Licensed Products from the Maintenance services during the Period of Coverage. During the Period of Coverage, Customer may be billed additional Maintenance fees resulting from the addition of Licensed Users. Payment: Customer agrees to pay the fees specified below upon execution of this Agreement. If Customer does not pay the amount specified below upon execution of this Agreement, Customer agrees to pay at J.D. Edwards' then -current prices to initiate its Period of Coverage for Maintenance services within thirty (30) days of invoicing by J.D. Edwards. Unless canceled by either party by written notice no less than thirty (30) days prior to the end of the Period of Coverage, this Agreement and the Period of Coverage shall automatically extend for one (1) year at the then current prices. Select Type: 4 Standard Maintenance Fee ❑ PRE U11ER Maintenance Fee (WorldSoftwate and OneWorld only) ❑ Reinitiation Charge Maintenance Fees (If paying upon execution, plus taxes, if applicable) User Type Licensed: concurrent Maintenance Fees: 100 X $ 600 = $ 60 , 000 (Numberfo�Licrosed (Fee per Licensed User) Users) Payroll and Human Resource Management Only: Maintenance Fees: X $ = $ (Number of Active (Fee per Active Employers) Employee) Total S 13.5Z X 43,000 = 5,805 Human resources and Payroll TOTAL: 65,805 Licensing Fees This Attachment, including its terms and conditions, and the Agreement of which it is a part, is a complete and exclusive statement of the agreement between the parties, which supersedes all prior or concurrent proposals and, understandings, whether oral or written, and all other communications between the parties relating to its subject matter. Notwithstanding anything to the contrary in the Agreement, in the event of a conflict between this Attachment and the Agreement, this Attachment shall prevail. All other terms and conditions remain unchanged and are ratified hereby. This Attachment shall not be effective until executed by Customer and accepted by an authorized representative of J.D. Edwards. Accepted by J.D. Edwards World SolyLt4ns Com and effective as of a---= C;7t'�%!i , 19 . J.D. ID WORLD SOLUTIONS COMPANY By (Authorized Signature) Richard Q- Snow, air - (Print or Type N� PfeekWM By execution, signer certifies that signer is duly authorized to execute this Attachment on behalf of Customer By (A7Signature) (Print or Type Name) (Title) (rule) AS I () Foirn Page 1/1 A731 1/97 lcatu73l.doo JUN-10-99 THU 03i42 PM CITY FT COLLINS ICS DEPT FAX NO. 9702216329 P. 03 3uN 10 199 16131 FIR JD Er' 'RD5 303 J64 eJl� lu 7i7racc usw-- ATTACHMENT O— OnetWorid""' Suite Pricing Notes (U THE LICENSED r1tonUm INSTALLED N A CLIE14T1sERVER ANWOR CNC RNV1kONMENT ARE SUBJECT TO THE MNMU14 TECHNICAL REQIJdtEMENTS PROVIDED BV J.D. SDWA1tDS TO CUSfOMPJa NCLtJOwo BUT NOT LPAI TED TO. THE DATABASE SERVER SOFTWARE DEPL0 YMENTlSOF7WARE DISTR16Vf10N 9lxVER AND CLIENT PORTIONS OF THE LICENSED PRODVGTS WHICH MUSE Bis BJDEPENDL'NTLY ACQU)RED AND FROVfDED BY CUSTOMER THESE ARE MWIMIIM IEpNKAL REQu1Rvt6NTS ONTY AND MAY NOT RESULT M THE ATTAINMENT OF SOME OR ALL OP THE PERF'ORMANC& OBJECCIYES OF CUSTOMER. MANY FACTORS, wQ.VDINO $UT lkYf LIMREO TO THE TYPE OF M WORX THE AMOViVT OF TOTAL NETWORK TRAFFIC AND THE TITS ADD PATfFRh[ OT USAOB DF THE LICENSED FROOVCT5 OR OTHER SOMWARE ON TA£ NBTWORK WILL ALSO IMPACT 1N>4 PERFORMANCE OP'lT1E LICENSED PRODUCTS MSTAZLfiD ON SUCH NETWORK (2) For each sgft*- a Suite sdectod carob listed pretegaisim SoM1wue Suite most plro he selected, Bxatoe Sofiv m: Suilas contain Software Ayplicadms *21 are pretwosim Ibr tiler Sa1Mre Applications in Oust or Wha Software Snlre , Liwomar should (mull each li mead SAware Snare it in eMiwty, FAILURE TO LICENSE AND INSTALL PREREQUISITE SOFTWARE SUITES OR SOFTWARE APPLICATIONS WILL VOID ANYAND ALL WARRANTS. (3) The Licvaaed PraduclS include the meWutcr programming code (te the form of ob)xt c9de and any source coda which is provided) in the selected Soflwse Suika, any Software Updyas povided to Cueomm undo the Mainwaru cc agreement, dre media in which Ilia prograres are delivered, and the sasoeiated Aomwo#Rfarlen. (4) The Foondal(et Software Suite COWLS the OwWmid Toolkk Cw4mer apace aunt to use the &W11onaliga or the OneWWId T9o0dt m derebP and market cgnputer program which oanparo with any J.D. Edwards Limsed Prodarm. c ualonaet dad) indvard& J.D. Edwards aphet any kam or expanse (toeludleg, vitbgIn limb. rrraonable atorueyk fms and eonroq 0411 defnves) w sing tat of of Lot connection with the UK mathikz liemsing. W sole of any computer programs W acraod by Customer tbtwgh tho use of the QwWorld TodMv NO WARRANTY 15 MADE THAT THE ONEWORW TOOLXIT WILL GIDIERATE COMpum PROGRAMS WITH THE CHARACTERISTICS OR SPECIFICATIONS DFSMED BY CUSTOMER OR THAT SUCH GENERATED COW>PUTER PROGRAMS WILL BE ERROR FREE. (S) LICENSE OF AWMWAL SOFTWAIIJ MM SMITIONAL If Comma lime ses addldoaal Software SUIM. L1t911*0Q ado Pry rise Baca iJomws Foe end any increased User Fees, Addllidralt Veers must be Ilaemtld in bkadts of lean {IO) Uean. HGVbaaCr ekcreeer de taonrbcr elf IJeMed then dote shag bar me soda girenot roamdpeN onde LtwreO Pasahndr ube drpsid (6) 1DFN WATION OF DMICYNATED PROCFSSOA(5): Costanner must identify each Deslouvied PMneel& on which the I-Immod P oduas an installed and the maaber of Vsus. Customer may uWada or dewopade the Daigmled Processor willow afkt all my fed vkld tinder We Anwhnrank. (7) A QM On J.D. Edwards' WAM request, col more troylrcatly than annually. COmma'shall Norish J.D. Edwards with a sipmd co tifee im (i) verilyhag the? the Llomued ProdaKts toe W119 used pwsaanl to the ptevislrrvs Of 1115 Alinement led Artachmem, secluding the hmltWiohs oar Us . and n h3limg the IOCRkMs, modda, Total Ueemed Users, Unt TyW3) ad eadal numbers of the Dcalpsated Proomste(s) on which clan Lummo Pmducw are tun. 110. Ed"Itle, not muss kegnently than a *wily and et he aunt µpeas; may mdat CurtoamrS use of ale Uocnxd products, Any east, $04 shall be cotdmial dwfng regular barkmi hot" at Custarces fadihkm and shall not unreieoaasbly tetarfare with Owto uric Meninx acRvldm. If a euthks'a or in nadir reveal Mw Customer has uruierpold fees to M. Edwards, Customer shall be invoiced for each underpaid lea at J.D. Words' then<wreet IW paled W the actual ININN" Of utarL if me underpaid fees -cold Me percent (S%) of the Liceme Feet paitt Nan Customer shell sire pay ),D, Edwards' tsasonable Comm ofe0nducting the audit. (g) SW PROf:EDtJItFS; THE ONEWORLD LICENSED PRODUCTS CONTAIN PROCEDURES VMCN LN117 THE NUMBFJ2 OF DFMYb1DM OF THE IJCENSRD MODUCTS'I'0 C1.WNT PC PU1TV MS TO AN AMOUNT SPECIFIED AT THE TTMf THE SOP7WARF PROTECTION CODF ('$PC-) IS ISSUED M The OneWorld CD Relearn B73,3 contains M mosoft blemet Explorer 4.01 and Adobe Acrobat 3,01 whA have Individual find User License ASreeutMms comelned wltWn the programs. MiertooR Internet Explorer tote Is a trademork of Microsoft Cotpo Oon. Adobe Acrobat logo is a trademark of Adobe Systems. Irmorpmona . Porrioms of OmWmld Release B73J contain third Pang software Welk We etpyriOtW sad ddaribvwd wrier a Rome hom : Portions Copyright 1983,1991 Micre ft Corpowiom. Porn m Copyright 1991.1995 Tmbeny 5011wan, Inc. Ponieas Copyright 1993 Premis Cotp0111iO4. Portions Copyright (c) 1997 DC Micro Devel"Mehl, All Ridtq Reecrved. The ).D, Nwards LSO 9001 reslaaatim does rem Include ptttdvots ileeaMd kern third pmdra. (10) THE UPIMODIFIED SOFiWAR$ APPLICATION IS RMNDED FOR USE M THE UNITED SPATES AND MAY NOT SUPPORT IACAL COVEIWMENT TWWWSIENTS OR EMPLOYMENT PRACMCFS WITHOUT MODWICATloNS BY CUSTOMER p l) The lnlbrmatich plodded in as scatlod 11 m4y Cestoaw's prtieetihn of the Imadmar of It, Licensed Uses sa of the time of the rxeeatim of this Attachment. It will be used solely for the pillpose Of allocation of the Unno a Fos and Manamance Far to be Invoiced from each of the J.D, E4WWda entities to Customer mid de d"iOrs of the convoleft J.D. Edwards entidet. Unitas othawim agrood to by the prdes, each of ate J.D. Edwards! eslities wl> Invoice their proportional* sham of License Fees and arty a mcided Malnmunce Foes (bared on tic perm elaae 211ee1110n on papa One) to CV00ma's a&hm ac It appeals on Pop One of this Mteehment. GLstonta ntay be asked Rom time to time To certHy the location Of IU Users in woosdance with the audit clause cmrrmined in the Agreement. (12) Payroll Suite requires PAYROLLTAXC to bus licetned dhaedy ftam Vermx "ems. Inc. teem adAY*Plg fee, (13) user Typs; A "Cersavraat USee's "I be bet fined as a irdlvidual with m airlymd 'war le which bars rammed a app0cadan a alahrd h A t assured P a iuU a lk1 dlrmIgh a metro aeloe im, to p tit. or hidden Wectiun. A User until be counted As a Concurrent User uhtV fie Viet tigms off the syrmu, TO M11hes the Ilbrary let, or antart Hidden Selection 90 (AWAM only). Multiple cencane01, eWiWd On rim sae Cusbrttef Syatcm intilimg the Sax 1Jarr Tel" IrAW44 from the tone woticonalon shall be corded as one Concurrem User. Bowcver, 305tiOW Misted by one "ever id" On mom tout one werianeon, or by non dun nee `ewr id" an the mme workstation, aWl be orsm d as Itnthiple Co culn s Users, The 101411 mammr of CmmMMUsed shaMltarnm ely mauls the L'Kemsd Prodt" at MY antes may not exceed the Cmourrem Llanted Users. Tm SPC Idd lot Deploymeae Server(s) (at relbrenood in Note g above) will ~ the 111W Maribor Licensed Users swignad to the Deployment Servac(s) diAW by�(fixample: Customers with 30 Co=mm U.nn will be able to deploy vp to 50 ellent PC plarfarme under iris pro•'uron). j'- C, asiMJ4haaaaeoWetMe..rraprepay forwl timAYTACWAMToasoasT !SA-Cdaards CMgrlaatd ** TOTAL. PAGE.03 ** JDEDWARDS- May 16, 2001 Dear Customer In November 2000, we sent you a communication informing you of a maintenance price increase effective January 1, 2001. This letter serves as a reminder regarding your increase because of the time lapse between the original communication in November and your annual invoice date. For a number of years, J. D. Edwards has maintained a generally flat software maintenance fee, keeping prices and cost of ownership significantly below our industry counterparts. Effective January 1, 2001, J.D. Edwards applied a 10% increase to all maintenance fees. The increase was due primarily to inflationary costs of service delivery over an extended period. For all standard terms and conditions, the increase will generally be applicable at the time of your annual maintenance fee renewal date. J.D. Edwards remains committed to improving services. Part of the fee increase has been invested in the development of new offerings that will provide a broader selection of services to meet your needs. We continue to maintain a highly competitive structure in view of the balance of fees assessed compared to value delivered. We appreciate your loyalty as a J.D. Edwards' customer. We are serious about our goal to "... enable client success through timely, accurate, and professional support" and look forward to providing you increasingly excellent support through the service offerings available to you. Sincerely, Idella Kercher Vice President 7� Global Support Services U} i r J.D. Edwards World Solutions Company One Technology Way Denver. CO 80237 303 334 4000 phone 303 334 9062 fax J JjLLAWCtItl5 Softw' License, Services and Maintenance sass E. Traits Artatne Agreement (rrAGREEMENT't) Denver, Colorado 80237 Customer City, of Fort Collins Address 256 West Mountain Avenue Fort Collins CO 80521 Customer is a N MUniCipal corporation & ❑ having its principal place of business at__'InQ L orte Avenue Fort Collins Co ors ("cus,omee,); J.D. Edwards World Solutions Company, ('J.D. Edwards), a Colorado corporation, varlets, and suppose certain software applications licensed hereunder as "licensed Products"-, The licensed Products am licensed by J.D. Edwards from J.D. Edwards Wodd Source Company, a Colorado corporation, laving its place of business at the above address ("J.D. Edwards Source"); I.D. Edwards and J.D. Edwards Source am owned by J.D. Edwards & Company, a Colorado corporation, having its place of business at the above address CUM. Edwards Company"). ARTICLE I. DEFINITIONS The following terms shall mean: Affiliate(s) Those entities under common control and ownership of the entity first identified as the Customer above, such common control and ownership being defined as the direct or beneficial ownership of a voting interest of at least fifty percent (50%) or the right or power, directly or indirectly, to elect a majority of the Board of Directors, or the right or power to control management. Confidential Information Information when presented in printed, written, graphic or photographic or other tangible form marled as 'Confidential', 'Proprieury' or 'Discloser Private' by the Discloser, and, when presented in oral form, recorded as written minutes or notes of such and presentations, which minutes or tuxes must be so marked. Customer The entity first identified as the Customer above and its Affiliates. Developed Software Custom modifications to the licensed Products developed by I.D. Edwards for Customer under Article III of this Agreement. Source and object code for such Developed Software, the media in which the programs are delivered and any related documentation is included. Designated Processor The computer processing unit(s) (CPUs) identified in each Attachment to this Agreement. Discloser The party disclosing Confidential Information. License Fee The fee defined in Article V, Section 12(A). Licensed Products) The source and object code for application programs and control language procedures, any Software Updates, the media in which the programs are delivered, and the associated documentation. Operations control and utility programs, including report writers, shall be provided in object code only. Period of Coverage The time period during which the Maintenance services shall be available under this Agreement. The initial Period of Coverage begins at the execution of this Agreement. Published Product Specifications All on-line help material included within the licensed Products and all of the user, technical, anti training guides (n whatever media) associated with the Licensed Products, as they may exist from time to time. Recipient The party receiving Confidential Information Software Updates Program updates and new system versions and releases provided during the Period of Coverage. Support Line Includes unlimited telephone support during normal Support Line hours, including research time performed by the Support true staff. It does not cover training, set-up of hardware or software, and programming consultation. ARTICLE II. SOFTWARE LICENSE ("LICENSE") 1. LICENSE GRANT In consideration of Customer's promises contained in this Agreement, J.D. Edwards grants to Customer, and Customer accepts, subject to the terms and conditions set out in this Agreement, a non-exclusive and non -transferable perpetual limited license to use the Licensed Products indicated in the Attachments which may be executed from time to time by the parties and which shall then be attached to this Agreement and shall become a part hemof. J.D. Edwards represents that it possesses all rights and interests in the Licensed Products necessary to enter into this Agreement. 2. LICENSE USE (A) Customer shall use the Licensed Products only on the Designated Processor(s) identified in Attachments attendant to this Agreement. Customer shall not copy the Licensed Products or allow their use by others without the written permission of I.D. Edwards except for Customer's production, backup, archival, and in-house disaster recovery purposes. Customer will reproduce and include the copyright, trade secret or other restrictive and proprietary legends from the original on all copies. All copies will be subject to the terms of this Agreement. The Licensed Products may be used only by Customer, and not for the benefit of any third party, including but not limited to, commercial timesharing or service bureau or other maul or sharing arrangements. The Licensed Products may be used only in the country in which they are first installed and may only he moved to another country with the prior written permission of J.D. Edwards. (B) Customer shall not: i7 reverse engineer any part of the Licensed Products, provided, however, that if the Licensed Products am located in a Member State of the European Community such activities shall be permitted solely to the extent, if any, permitted by Article 6 of the Council Directive of 14 May 1991 on the Legal Protection of Computer Programs and any implementing legislation therefor, (i) distribute, sell or otherwise transfer any part of the licensed Products; and (tii) remove the copyright, trade secret or otherproprietary protection legends or notices which appear on or in the Licensed Products. (C) Customer shall notify J.D. Edwards in writing of any model change to a Designated Processor. 3. CUSTOMER'S CHOICE OF DESIGNATED PROCESSOR Sizing is the process of estimating the amount of computer equipment and types of hardware and software features needed to execute the licensed Products on the Designated Processor under particular circumstances and to achieve certain performance gods. J.D. Edwards will perform a sizing only upon Customer's request and using the Customer's own data and estimates. Customer shall have all responsibility for the choice of the Designated Processor, its features, and the use of the licensed Products to achieve any performance goals. WITH RESPECT TO THIS SECTION, J.D. EDWARDS MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. J.D. EDWARDS ALSO MAKES NO WARRANTY AS TO THE ADEQUACY OR CAPACITY OF THE DESIGNATED PROCESSOR OR AS TO THE PERFORMANCE OF THE LICENSED PRODUCTS ON THE DESIGNATED PROCESSOR TO ITIE EXTENT SUCH PERFORMANCE IS RELATED TO THE ADEQUACY OR CAPACITY OF THE DESIGNATED PROCESSOR. ARTICLE III. SOFTWARE SERVICES ("SERVICES") J.D. Edwards provides Services on the following terms and conditions: 1. SERVICE PROVISION (A) I.D. Edwards will provide Services, at Customer's request as specified on Attachment S, or as outlined in a engagement letter, scope of work, or exhibit, attached hereto or mutually agreed to after execution of this Agreement. (B) J.D. Edwards' estimates and time schedules am realistic but not absolute. J.D. Edwards will use reasonable efforts to perform the Services according to its estimates and time schedules but causes beyond J.D. Edwards' control may cause delays in implementing the Services. Changes to Customer's business plans or practices or alterations made to specifications may cause delays in completing the Services. (C) In developing estimates and time schedules, I.D. Edwards considers all its available consultants, regardless of location and including J.D. Edwards' subcontractors. J.D. Edwards also plans that its consultants will work as much as possible at J.D. Edwards' locations; therefore, J.D. Edwards' consultants may perform billable work for Customer even though they am not at Customer's locations. (D) J.D. Edwards grants to Customer a non-exclusive, perpetual license to use any Developed Software developed under this Article subject to the same terns and conditions of Article II of this Agreement. Customer and J.D. Edwards agree that Developed Software provided to Customer shall not be a 'work made for hire'. (E) Customer acknowledges that the Services can be obtained from vendors other than I.D. Edwards and that Customer's decision to purchase such Services from J.D. Edwards was made independently of Customer's decision to license J.D. Edwards' Licensed Products. 2. MANAGEMENT CONTROL AND RELATIONSHIP OF PARTIES (A) Customer and J.D. Edwards may mutually agree upon, the key personnel to be assigned by each party to perform the Services under an engagement loner, scope of work, exhibit or other wriuen amendment. (B) Each party shall give written notice to the other parry of the persons it shall assign from time to time to perform the Services hereunder. Although each party agrees to minimize the remover of its personnel assigned to the project, it is agreed that each patty shall give Page 1/4 A7.31 1197 Icrost731.doc AGPXETA= written notice to the other party of any changes in personnel assigned to perform the service hereunder. (C) Either party may request at any time the removal of any individual performing Services if that party: (7 believes that individual is not qualified to perform the Services or does not meet appropriate professional standards; and u previously provided the other party with written notice of the problem and a reasonable opportunity to remedy the situation, considering the gravity and nature of the problem. Replacement personnel, if any, must have sufficient qualifications. (D) Customer's project turn will provide the decision making and direction required to implement the J.D. Edwards software. This includes, but is not limited to, the creation of a detailed project plan and the scheduling of internal and external resources. J.D. Edwards consultants will work with Customer to implement such plan under the project team's direction 3. J.D. EDWARDS PERSONNEL AND OBLIGATIONS (A) J.D. Edwards does not undertake to perform any obligation of Customer, whether regulatory or contractual, or to assume any responsibility for Customer's business or operations. J.D. Edwards has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all work to be performed by J.D. Edwards, except as otherwise provided in this Agreement. (B) Customer will inform and J.D. Edwards will comply with all reasonable workplace standards and policies, applicable to Customer's employees, while J.D. Edwards personnel am physically located at Customer's premises. (C) J.D. Edwards may subcontract the perfomu=c of any of the Services or Training. J.D. Edwards shall be responsible for all performances under this Agreement by its subcontractors as if they were J.D. Edwards' employees. For the purposes of this Agreement, references to 'J.D. Edwards' personnel' or similar words shall be deemed to include any subcontractor or any subcontractor's personnel. ARTICLE TV. SOFTWARE UPDATESISUPPORT LINE ("MAINTENANCE") 1. MAINTENANCESEAVICES (A) Maintenance includes the Software Updates and Support line services. Maintenance is offered by J.D. Edwards for all of and only the Licensed Products under the Software License Agreement and its Attachments licensed for use on the Designated Processor(s) for which J.D. Edwards has expressly agreed to offer a warranty under Article V, Section 4(A) of this Agreement. (B) Unless canceled by either party by written notice no less than thirty (30) days prior to the end of the Period of Coverage, the Period of Coverage for Maintenance shall automatically extend for one (1) year at J.D. Edwards' then current prices. (C) Support Live services shall be provided in accordance with J.D. Edwards' Support Line policies in effect at the beginning of each annual renewal of the Period of Coverage. Fees for reinstatement of lapsed Maintenance services shall be charged in accordance with J.D. Edwards' policy for misstatement fees in effect on the date of meh.meinstaeenem. (D) All software or data deliveredby the Support Line shall become part of the Licensed Products. (E) Customer is responsible for the installation of upgrades from one release or version to the nerd of the Licensed Products. 2. ENHANCED PRODUCT EXCHANGE (A) Due to advances in hardware and software technology, J.D. Edwards may, from time to time, develop and make generally available enhanced products ('Enhanced Productsl that, while having functions and features substantially similar to J.D. Edward's then existing Licensed Products, opera using this new technology. During the Period of Coverage, for any existing Licensed Products licensed by Customer, Customer may elect to license these Enhanced Products on alike -module for like - module basis for an additional License Fee of ten percent (10%) of the then current fin price license Fees of the existing Licensed Products. To makes this election, Customer must either exchange its existing Licensed Products for the Enhanced Products on a like -module for like - module basis or operate them in coexistence with the then Licensed Products which have substantially similar features and functions ('Exchange Provision'). The license for the Enhanced Products will be subject to J.D. Edwards' then current terns, condition, and prices. The additional ten percent (10%) of List price License Fee does not apply to subsequent release levels (e.g. A7.0 to A7.1) or versions (e.g. A7.0 to A8.0) of the existing Licensed Products previously licensed by Customer. This section is not a commitment by J.D. Edwards to develop any product, version, or feature or a commitment to refund any License Feet paid should the development of any product, version, or feature riot occur. (B) Customer may make this election so long as it: n is in compliance with the terms and conditions of this Agreement; and n is subscribing to Maintenance and there has been no lapse in the Period of Coverage. If Customer is not subscribing to Maintenance at the time of the election, then Customer must pay reinstatement fees in accordance with J.D. Edwards' then eumm policy. This Exchange Provision shall not reduce or eliminate any charge which may result from either a change to the Designated Processor or in increase in the number of users. ARTICLE V. GENERAL 1. PROPRIETARY RIGHTS (A) The Licensed Products and Developed Software provided under this Agreement have substantial monetary value and are proprietary to J.D. Edwards Source. The Licensed Products may include copyrighted works and trade secrets, and may include Licensed Products for which a patent has been applied for or issued. The Licensed Products may also include copyrighted and proprietary material of third parties for which J.D. Edwards and J.D. Edwards Source has been granted a right to use and distribute. J.D. Edwards Souse and any third party suppliers shall retain ownership of all rights, title and interest to its licensed Products and all versions thereof. All enhancements and modifications nude by J.D. Edwards which are provided under the warranty or Software Update provisions of this Agreement will remain proprietary to J.D. Edwards Source and are considered a pan of the Licensed Products under this AgmemeuL The Licensed Products and Developed Software beer a copyright legend which in no way reduces the trade secret, proprietary, and/or confidential nature of the licensed Products or Developed Software. (B) Customer shall notify J.D. Edwards immediately of any unauthorized possession, use or knowledge of any Licensed Products and Developed Software. Customer shall promptly famish J.D. Edwards with full details of such situation and assist in preventing any recurmoce thereof and cooperate at J.D. Edwards' expense in any litigation or other proceedings reasonably necessary to protect the rights of J.D. Edwards' and J.D. Edwards Source. (C) THE LICENSED PRODUCTS CONTAIN SOFTWARE PROTECTION PROCEDURES. IF THERE OCCURS ANY UNAUTHORIZED USE OF THE LICENSED PRODUCTS, SUCH SOFTWARE PROTECTION PROCEDURES WILL LIMIT ACCESS TO THE LICENSED PRODUCTS AND ANY DEVELOPED SOFTWARE OR COMPLEMENTARY PRODUCTS. The iumction of the software protection procedures is documented in J.D. Edwards Source's Published Product Specifications. J.D. Edwards represents that all software protection procedures will only limit seem to the Licensed Products and will not destroy any of Customer's program or data. Further, if the software protection procedures have been enabled when theme is no unauthorized use by Customer, J.D. Edwards will, on a highest priority basis, assist Customer in returning to normal operations at no charge to Customer. 2., RIGHT TO MODIFY Customer has the right to modify the Licensed Products and the Developed Software without the consent of I.D. Edwards. Modifications to the Licensed Products made by Customer, its employees or third -patty, agents (and east made by J.D. Edwards) shall be the property of Customer. J.D. EDWARDS MARES NO WARRANTY, EXPRESSED OR S M.)ED, REGARDING ANY MODIFIED PORTIONS OP THE LICENSED PRODUCTS AND THE DEVELOPED SOFTWARE and that no modifications, including the Developed Software, shall reduce J.D. Edwards Source's ownership of the Licensed Products or the Developed Software. 3. MUTUAL NONDISCLOSURE Pursuant to this Agreement, each party may, from time to time, furnish the other party to this Agreement with certain Confidential Information which includes, but is not limited to, the Licensed Products and Developed Software. Recipient will use the same care to avoid dfsclomre, publication or dssemitied= of such Confidential Information as it uses with its own similar confidential information which it does not wish to disclose, pubfish or disseminate. The Confidential information, including any TRADE SECRET, CONFIDENTIAL and/or PROPRIETARY information contained therein is not to be disclosed to any persons other than the employees of Recipient, and consultants or agents of the Recipient (if any) who have a need to know and who have executed a nondisclosure agmenem substantially in the form of this Section of the Agreement prior to such disclosure. A copy of such executed nondisclosure agreemmn shall be supplied to either party to this Agreement upon request. The disclosure of Discloser's Confidential Information does not gram to the Recipient any license or rights to any trade secrets or under any patents or copyrights, except as expressly provided by the licenses granted in this Agreement. The obligations of Recipient with respect to any particular portion of Confidential information shall terminate or shall not attach, as the ease may be, when any of the following occurs: n It was in the public domain at the time of Discloser's communication thereof to Recipient. (ii) It entered the public domain through no fault of Recipient subsequent to the time of Discloser's communication thereof to Recipient (di) It was in Recipient's possession free of any obligation of confidence at the time of Discloser's communication thereof to Recipient. (rv) It was independently developed by Recipient. (v) Its disclosure is requited by court or goverment order and Discloser has been given notice of such order. Discloser undettsands that Recipient may develop information internally, or receive information from other patties, that may be similar to Discloser's information. Accordingly, nothing in this Agreement shall be construed as a representation or inference that Recipient will not independently develop products, for itself or for others, that compete with the products or systems contemplated by Discloser's information. The parties agree that a breach of the confidentiality obligations by Recipient shall cause immediate and irreparable monetary damage to Discloser and shall entitle Discloser to injunctive relief in addition to all other remedies. 4. WARRANTIES (A) licensed Products: J.D. Edwards warrants that for a period of six (6) months following the date of delivery of the Licensed Products to Customer's first designated site, the Licensed Products will perform in all material respects in accordance with the J.D. Edwards Source Published Product Specifications in effect at the date of this Agreement. J.D. Edwards further warrants that the J.D. Edwards Source Published Product Specifications are accurate in all material respects. However, J.D. Edwards males no warranties regarding any third party products licensed on Attachment C hereunder except as otherwise provided on that Attachment. J.D. Edwards shall have no responsibility for problems in the Licensed Products caused by alterations or modifications made by Customer or a third party, or arising out of the malfunction of Customer's equipment or other software products not supplied by I.D. Edwards. (B) Services: t7 J.D. Edwards warrants to Customer that the Services supplied hereunder in Article H shall be perfomrcd in a professional and workmanlike manner. () J.D. Edwards warrants to Customer that the unmodified Developed Software shall operate in all material respects in accordance with the written, mutually agreed upon specification for such Developed Software from the date of completion of such Developed Software for a period of ninety (90) days. However, J.D. Edwards shall have no responsibility for problems in the Developed Software caused by alterations or modifications made by Customer or a third party, or arising out of the malfunction of Customer's equipment or other software products not supplied by J.D. Edwards. (C) Maintenance: During the Period of Coverage, I.D. Edwards warrants that the Licensed Products will perform in all material respects in accordance with the J.D. Edwards Source Published Product Specifications as they may exist during the Period of Coverage. Such Published Product Specifications shall be accurate in all material respects but shall be subject to amendment from time to time. S. WARRANTY EXCLUSION (A) THIS AGREEMENT PROVIDES LICENSES AND SERVICES AND IS NOT A SALE OF GOODS. (B) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 6. EXCLUSIVE REMEDIES For any breach of warranties contained in Section 4 of this Article, Customer's exclusive remedy shall be as follows: (A) Licensed Products: Customer shall have six (6) months following delivery of the Licemed Products to Customer's first designated site to verify that the Licensed Products conform in all material respects with J.D. Edwards Source Published Product Specifications. Customer shall provide written notice of any material nonconformance to J.D. Edwards within this six (6) month period. Such notice shall be in sufficient detail to allow J.D. Edwards to duplicate the nonconformance. J.D. Edwards shall, at no additional charge, correct such nonconformance or provide a mutually acceptable plan for correction by sixty (60) days following the receipt of Customer's notice by J.D. Edwards. Should J.D. Edwards Gil to provide such correction or mutually acceptable plan by such date, Customer's sole and exclusive remedy shall be to terminate this Agreement as a default incapable of cure by written notice in accordance with the termination provisions hereof. Notwithstanding the payment provisions hereof, Customer shall be entitled to receive a refund of the License Fees paid. Such notice of termination must be received by I.D. Edwards within ten (10) days following the date for correction or plan for correction. (B) Services. (i) Customer is entitled to reperformaee of time Services, or if I.D. Edwards cannot perform the Services as warranted, Customer is entitled to a refund of the fees paid to I.D. Edwards for the Services not in conformance with the warranty. (1) J.D. Edwards agrees to correct, at no charge, all material nonconformances in the Developed Software of which J.D. Edwards receives written notification during the misty (90) day warranty period. If a material nonconformance is incapable of correction, it shall be considered a breach of warranty and Customer shall be entitled to return the nonconforming Developed Software and receive a refund of fees paid for the nonconforming Developed Software. (C) Maintenance: J.D. Edwards agrees to correct any material nonconformance of the unmodified portion of the Licensed Product(s) to J.D. Edwards Source Published Products Specifications at no additional charge. However, J.D. Edwards shall have no obligation to provide any corrections if Customer has not installed the current version of the Licensed Products within six (6) months after foetal release. Customer shall provide notice to J.D. Edwards in sufficient detail to allow J.D. Edwards to duplicate the nonconformance. Should I.D. Edwards fail to provide such correction, Customer's sole and exclusive remedy shall receive a refund of Maintenance fees paid for the nonconforming Licensed Product(s) for the Period of Coverage during which the nonconformance occurred. 7. INDEMNITIES (A) J.D. Edwards agrees to indemnify, defend and hold Customer harmless from and against any loss, cost, damage, liability, or expense (including reasonable legal fees) suffered or incurred by Customer in connection with any patent, copyright or other infringement claim by any third party; provided, however, that Customer permits J.D. Edwards to defend. compromise or settle said claim of infringement and provides J.D. Edwards all available Information, assistance and authority to enable J.D. Edwards to do so. However, J.D. Edwards shall have no liability for any claims of infringement that depend upon the use of the Licensed Products in conjunction with non-J.D. Edwards software or other non- J.D. Edwards products or upon a use of the licensed Products in an unusual or unintended manner. (B) J.D. Edwards further agrees that if Customer is prevented from using the licensed Product(s) due to an scrosl or claimed infringement of any patent, copyright or other intellectual property right, then at J.D. Edwards' option, J.D. Edwards shall promptly either. () procure for Customer, at J.D. Edwards' expense, the right to continue to use the Licensed Product(s); (i) replace or modify the Licensed Product(s), at J.D. Edwards' expense, so that the licensed Product(s) become non -infringing; or (i). terminate the Agreement and return Customer's license fees for the infringing Licensed Product(s) in the event that neither (i) or iiare reasonably feasible. (C) Subsections (A) and (B) of this Section shall constitute J.D. Edwards' entire obligation to Customer with respect to any claim of infringement. (D) t7 J.D. Edwards agrees to indemnify Customer from and againat all costs and liabilities, including reasonable legal fees, which Customer may be required to pay for claims due to injuries to persons or damage to property pertaining to the furnishing of services or software by J.D. Edwards under this Agreement. However, this subsection shall not apply where such injury or damage is caused by the negligence or willful misconduct of Customer, its agents, or employees. (fi) Customer agrees to indemnify I.D. Edwards (mm. and against all costs and liabilities, including reasonable legal fees, which J.D. Edwards may be required to pay for claims due to injuries to persons or damage to property caused by Customer during the conducting of training or Services under this Agreement. However, this subsection shall not apply where such injury or damage is caused by the negligence or willful misconduct of J.D. Edwards, its agents, or employees. 8. LIMITED LIABILITY EXCEPT FOR &)FAILURE TO C0161PLY WITH THE PROPRIETARY RIGHTS OR b)THE INFRINGEMENT INDEMNITY PROVISIONS CONTAINED HEREIN: (A) IN NO EVENT SHALL EMIER PARTY BE LIABLE TO THE OTHER PARTY FOR A MONETARY AMOUNT GREATER THAN THE AMOUNTS PAID PURSUANT TO THIS AGREEMENT. (B) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OR INJURIES TO EARNINGS, PROFITS OR GOODWILL, OR FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY PERSON OR ENTITY WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (C) THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY OTHER RE161EDIES FAIL OF THEIR ESSENTIAL PURPOSE. 9. ARBITRATION All disputes involving this Agreement shall be submitted to a panel of three (3) arbitrators appointed and operating under the Uniform Arbitration Act and the procedural rules of the American Arbitration Association. Such panel shall include only persons with computer software industry experience. Each party shall choose one (1) arbitrator, and the third arbitrator shall be chosen by the two (2) arbitrators thus selected by the parties. The location of the arbitration hearing will be chosen by the party not initiating the arbitration or action. The written decision of the arbitrator$ shall be final, binding and convertible to a court judgment in any appropriate jurisdiction. 10. TERMINATION (A) If either party materially breaches this Agreement, the other party ray give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cute the default within thirty (30) days of the notice, the other party may terminate this Agreement. If such default is incapable of cure, the other party may terminate this Agreement immediately upon written notice of its desire to terminate. Upon termination, the License to use the Licensed Products shall be immediately revoked and all Licensed Products and supporting materials will be returned to J.D. Edwards or destroyed and an affidavit supplied to J.D. Edwards certifying destruction. Confidentiality obligations shall survive this Agreement. (B) In the event an Affiliate ceases to comply with the definition of Affiliate herein, J.D. Edwards' may, at its option, terminate this Agreement between J.D. Edwards and the former Affiliate according to the termination provisions hereof. 11. E?APLOYEE RECRUITING Each party acknowledges that the other parry's employees are critical to the servicing of its customers. Each party agrees not to employ or otherwise engage the other party's employees for a period of six (6) months following any employee's last involvement in the performance of this Agreement. Should a party violate this provision, the hiring party will pay the otherparty fifty Page 3/4 A731 1197 Icmu731.doc AGREE114ENT percent (50%) of the former employee's annual salary. Such payment shall be the other party's sole remedy with respect to the hiring party. However, such payment does not restrict the other party's rights or remedies as they relate to such former employee. 12. PAYMENT (A) In consideration for the License granted in Article 11, Customer will pay to J.D. Edwards the License Fee listed on any Attachment attendant to this Agreement. Customer agrees to pay seventy-five percent (75 %) of the license Fees upon the execution of this Agreement and any Attachment attendant to this Agreement, and the remaining twenty-five percent (25%) within thirty (30) days after delivery of the Licensed Products. (B) As compensation for perforating Services under Article III. Customer agrees to pay J.D. Edwards on a per hour basis for the actual hours expended or, in the ease of training and Solution Assurance, at I.D. Edwards' list price. J.D. Edwards' standard hourly rates vary, depending on the individual required. Schedule changes for Services must be trade by Customer two (2) weeks in advance, otherwise, J.D. Edwards may charge for time it cannot reschedule. Customer agrees to reimburse I.D. Edwards for all out-of-pocket expenses J.D. Edwards incurs in providing Services hereunder including, but not limited to, transportation costa, airfare, rental vehicles, lodging, meals, and incidental charges, which ate reimbursable expenses and not part of J.D. Edwards' total estimate for the Services. If uncontested amounts remain unpaid for thirty (30) days or mom, J.D. Edwards may, at its option, refuse to perform additional services under this Agreement until such amounts are paid. (C) Customer. shall pay Maintenance fees in accordance with any Maintenance Attachment attendant to this Agreement and subsequently as an annual charge. The first payment shall be due upon execution of this Agreement. If Customer fails to remit Maintenance fees, J.D. Edwards will have no duty to provide the Maintenance services specified under Article IV. (D) In addition to the charges due under this Agtcement, and even if Customer shall provide a tax exemption number or affidavit of exemption, Customer shall be responsible for all taxes including sales, use, property, excise, value added and gross receipts levied on this Agreement or the Licensed Products or the Developed Software, except taxes based on J.D. Edwards' net income. Customer agrees that if any of the foregoing are paid by J.D. Edwards, Customer shall immediately reimburse J.D. Edwards for the amount paid plus any expenses incurred in connection therewith and interest thereon. J.D. Edwards aeeepts full and exclusive liability for the payment of all employer contribution and taxes measured by any payments to J.D. Edwards' employees. In the event that Customer is required by any applicable law to deduct any amount from the amounts to be paid to J.D. Edwards under this Agreement on account of withholding taxes or any other taxes or levies of any kind, Customer agrees that it shall pay all such additional amounts so that the net amounts received by J.D. Edwards 14. GENERAL (A) The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach. (B) All notices shall be in writing and sent by certified mail, postage prepaid, return receipt requested to the address written above or such other address as notified to the other party and such notice shall be deemed to be made on the fifth (5th) day after such mailing. (C) This Agreement shall be the most basic enumeration of the terms and conditions under which the contemplated transactions will be governed. An Attachment to this Agreement shall modify this Agreement to the extent of any conflict in terms. An Addendum shall modify this Agreement and any Attachment hereto to the extent of any conflict in terms. No amendments, modifications or supplements to this Agreement shalt be binding unless in writing and signed by the Parties. (D) All disputes involving this Agreement, except actions arising under the patent and copyright provision of the U.S. Code, shall be determined under the law of the State of Colorado No action, regardless of form arising out of this Agreement, may be brought by either party mom than one (1) year after the claiming party knew or should have known of the eau-- of arbitration or action. (E) Customer understands that I.D. Edwards' business partners, except where they ate acting as subcontractors pursuant to Article III, Section 3(C) of this Agreement, are independent entities and J.D. Edwards is not liable for nor bound by any acts of such business partner. (F) All future licenses of additional Licensed Products or Developed Software, or the provision of other Services and Maintenance shag come under the terms and conditions set forth hercin subject to the then current prices and each party shall have the same rights, duties and privileges with respect to such subsequent transaction as is established by the terms of this Agreement. (G) If any provision of this Agreement is held to be invalid or unenforceable, such decision shall not affect the validity or enforceability of the Agreement or any of the remaining provisions. a Except as provided in this subsection, this Agreement may toot be assigned by either party and any attempted assignment which does not adherc to these provisions doll be void. However, either party any, upon wtinen naive to the other patsy, assign this Agreement to any A(fliNe. J.D. Edwards may assign " Agreement in the event of the ask of all or substantially all of its assets or equity. (1) This Agreement shall be prepared in two identical and original counterparts. If a counterpart shag be prepared in a language otter than English, then English shag be the language of this Agreement and the English language counterpart shall govern all disputes, performance and interpretations, and the counterpart in another language shall be for convenience only and shall not affect the performance or an the amounts specified herein. interpretation of this Agreement. (E) Customer agrees to pay for all uncontested amounts due under (I) All amounts stated in and payable under this Agreement shall be this Agreement within thirty (30) days after the date of invoice. denominated in United States Dollars and shall be payable in ready Customer shall have thirty (30) days after the invoice date to contest in foods in United States Dollars to payee's account at payee's designated good faith the amounts and items charged. Past due uncontested United States bank. amourds will bear interest of one and one-half percent (IS4%) per (9) The parties hereto are independent contractors and neither party month from the due date or the highest rate permitted by law if less. nor its employees, directors, agents, or consultants shall hold itself out (F) All payments made hereunder are nonrefundable except as to be or allow itself to be considered as an agent or employee of the specifically provided otherwise in this Agreement. other party. (L) Neither patty shall publicly announce or disclose the term and 13. EXPORT CONTROLS Customer agrees that it will not ship any conditions of this Agreement except that J.D. Edwards may use licensed Products to a country until it her completed all necessary Customer's name as a reference in J.D. Edwards' sales calls and in lists govermnent formalities in such country and, upon reasonable request of J.D. Edwards' customers. This provision shall survive the by J.D. Edwards, Customer will provide evidence of completion of termination of this Agreement. such formalities to J.D. Edwards. Customer acknowledges that the " The parties agree that this Agreement is not subject to and shall Licensed Products may be subject to export controls imposed by U.S. not be interpreted by the United Nations Convention on Contracts for laws and regulations. Customer will indemnify I.D. Edwards for any the International Sale of Goods. losses, costs, liability, and damages, including reasonable legal fees (N) Any Attachment to this Agreement may be accompanied by incurred by J.D. Edwards as a result of failure by customer to comply Customer's purchase order or other instrument covering the subject with this section. J.D. Edwards any, from time to time, deny nutter of this Agreement. Such purchase order or other instrument is Customer the right to license in certain countries in order to protect for Customer's internal use and shall not affect this Agmcm=L J.D. Edwards' interests. including the Addendum of even date leJ heretaith �pyy� �,nq �f Ibis Agreement, including its terms and condition and its attachments and AmendrtctYs fts a wmuplete and tcort velsst ingf RE agar n etibUdveEn tl��t aS which supersedes all prior or concurrent proposals and understandings, whether oral orwritren, and all other conummptiero between the parties misting to the subject maser of this Agreement. This Agreement skull not be effective until executed by Customer and accepted by an authorized representative of J.D. Fdwuds. o AoeeptdFdw�a�IIrld.SogSCspmpaoy and eRative not 5+��7 19Z!) By execution, signer cestifes that sign r is duly authorized to execute this Agremnut on behalf of Customer qawel a S B. O'Neill hype Noe) Director of Purchasing & Risk Mgmt. Critic) ADµifi,18t3 AS TO FOffn: a gs',,istant City t y ,qiDt �� �S• TrA EV "*MT A - LICENSED PRODU C�i 5 Tufts E, TuAvenue J WoddSoftware," - Suite Pricing Denver. Colorado 80137 Customer City of Fort Collins Address 256 West Mountain Avenue Fort Collins, CO 80521 This Attachment A to Software License Agreement t'Attaehment'l is made by and berween J.D. Edwards World Solutions Company ('J.D. Edwards') and Customer in consrdermion of their mutual promises and subieet to its terms and conditions. This Ankh• ent ameaos cbe (check onciMoftware License. Services son Maintenance Across ant or ❑ Software License Agreement i'Agroament'l, dated 19„ Customer sines m (check appropriate ootion(s)))MIkenso. and/or ❑ upgrane the number of Licensed Users for use on the Designated Proeeasons). Applicable sores are on Page Two. Licensed Products (2) (Pleat mark Software Suites selected): Suite Base Software Suites I Prerequisites (1) License Fee M 1 Foundation (3,6,7) M 2 Financiai M 3 Logbaicst'Distribution ❑ 4 samixs ❑ S Manufacturing ❑ 6 Atcbitem m. Engineering, & Construction ❑ 7 ECS XK 8 Payroll (3,4) OKU.S. 0 Canadian IW 9 Human Resources Management (4) ❑ 10 Cuuomer information System 1CIS) oil Transportation Management Base (7.8) ❑ 12 Transportation Management Load Build (7,8) 1313 World RF (7,9) ❑ 14 Electronic Commerce (7,10) ❑ _ User Type Ucen.ed (I1): concurrent Fero for Lict med Users (12): S X (User Fee) Fee for AddWwDAI Geographical Sit" (13): QmbX irr•r of Additional Goopaphiaai Sit") Fw for Active Employees (Paris dt S X Huron Rescums Management Only) (14) (Active Employee Fee) TOW SoRwste Ucems Fees: Uppade Albvancs Not software License Fees TUN TOW [MAIM Location (Orr or aura insalladoni 1. Fort Collins, CO 2. 3. 4. S. 6 see Attachment O S I see Attachment 0 112 see Attachment 0 1,213 1,2.3 1.2 1,2,3 I 1 21-SOO 1 1.2.3,5 21,500 1 1 1 ' I ToW Base.Lic=m Fees S 43,000 nep Artarhmpnr n s (Number of Lrca sso Users) S � f (Addilioeet Gsepepi Mi Site Feel (Moseberof Active Employees) S 43,000 ( 1 S 43,000 s S 43,000 Lleaasd Usen or DasigtmW Processor JIM AeWI Sa*Myes Me"Festamsesisl Number twcPU TBD/TBD see Attachment TaYliicsand user 1101 -,Pp Arta hmen This Attachment, including its terms and conditions and the Agreement. is a compiste and exclusive statement of the agracroca betwear the Parties. which supersedes all prior or concurrent proposals and understandings, whether end or written. and all other communications betwom d apaaies relating to its subjoesmater. Notwithstanding anything to the contrary in the Agreement. in the event of a conflict betwom this Attachment and the Agreomaos. this Attachment stall prevail. All other tams and conditions remain unchanged and are ratified baeby. This ACae iumat shall not be effective until exocurod by Customer cad accepted by an authorized representative of J.D. Edwards. Accepted by J.D. Edwards Woid SotWns Company d By execution. signer certifies that signer is authorized to effective as of 3.% , 0� 19,. execute this Attachment on behalf of Customer. r1m, R is James B. O'Neill II, CPPO ffras r fwehr Director of Purchasing & Risk Mqmt. u;iV�t As -its rafrn:, Assistant City t r ey rage va A73131971cataliLd