1-Terms and Conditions - Professional Service Component of IT Projects 11.15.2024.pdf

TERMS AND CONDITIONS FOR PROFESSIONAL SERVICE COMPONENT OF IT PROJECTS (No Federal or Grant Funds)

1. ORDER/ACCEPTANCE/ENTIRE AGREEMENT.

(a) This Purchase Order between the Town of Parker, Colorado (the “Town”) and the Supplier, Vendor, Consultant, or Contractor named on the Purchase Order (the

“Supplier”), together with all documents referenced or attached thereto, is subject to these terms and conditions and is collectively referred to herein as this “Order.”

The Supplier’s acknowledgement, acceptance of payment, or commencement of performance shall constitute the Supplier’s unqualified acceptance of this Order.

Additional or differing provisions proposed by the Supplier or included in any documentation submitted by the Supplier to the Town are hereby objected to by the Town and have no effect unless accepted in writing by the Town’s signatory to this Order. This Order and any attached exhibits supersede any prior or contemporaneous offers, negotiations, and agreements concerning the subject matter hereof and constitute the entire agreement between the parties. This Order may not be modified except in writing signed by the Town’s signatory to this Order.

(b) All services included or referenced in the Order (“Services”) are to be scheduled with the Town representative identified in the Order (“Town Representative”). The Town may change the Town Representative by giving notice to the Supplier. The Town Representative shall be the sole judge of the acceptability of the goods or Services and the sufficiency of the supporting data submitted by the Supplier.

(c) The Supplier shall provide all labor, equipment, materials, and supervision necessary for, or incidental to, the complete and timely performance of all services described or reasonably implied from the terms and conditions of this Order. The Supplier shall perform the Services to the satisfaction of the Town and in strict accordance with the provisions of this Order.

(d) The terms and conditions of any supplier invoice, Supplier time sheet, or order form, including but not limited to indemnification, limitation of liability, or cancellation fees, shall be void and of no effect against the Town notwithstanding any signatures on such form by a Town employee. The Supplier’s rights and obligations shall be solely governed by the terms and conditions of this Order. Any employee’s signature on the Supplier’s forms shall be effective only to establish receipt of goods or services.

2. GOVERNING LAW/COMPLIANCE WITH LAW.

(a) The rights and duties of the parties under this Order shall be governed by the laws of the State of Colorado, excluding its conflicts of law provisions. The courts of the

State of Colorado shall have sole and exclusive jurisdiction of any disputes or litigation arising under this Order. Venue for any and all legal actions arising hereunder shall lie in the courts in and for the County of Douglas, State of Colorado.

(b) The Supplier shall observe and comply with all applicable laws, including but not limited to federal, state, and local laws, regulations, rules, or ordinances that affect those employed or engaged by it, the materials or equipment used or the conduct of the Services, and shall procure any and all necessary approvals, licenses, and permits all at its own expense.

3. KNOWLEDGE OF THE SERVICES. Before entering into this Order, the Supplier became fully informed regarding the Services and any materials or equipment required, including the amount or quantity thereof. No adjustment or modification shall be allowed for any misunderstanding of the Services or of equipment or material requirements, or of the provisions contained in this Order. The selection of materials and equipment for the Services shall be in accordance with this Order, and any other applicable federal, state, or local laws, rules, regulations, or policies.

4. PERFORMANCE PERIOD. The Supplier shall begin the Services on the date specified in the Order or any applicable notice to proceed and shall complete the Services within the time designated in the Order (the “Completion Date”). Time is of the essence in completing the Services. All Services shall be performed in accordance with good commercial practice and the Services schedule and completion dates shall be adhered to by the Supplier. If the Supplier becomes aware of difficulty in performing this Order, the Supplier shall timely notify the Town Representative in writing. This notification shall not change the period of performance unless agreed to in writing by the Town Representative.

5. INVOICES AND PAYMENTS. The Town shall pay the Supplier the agreed-upon price in accordance with this Order in the amounts set forth in the schedule of deliverables, if applicable, within 30 days of satisfactory completion and approval of the Services by the Town Representative. If the Services exceed 30 days, the Supplier may submit applications for payment monthly based upon Services completed and approved by the Town. The Town shall make payment to the Supplier within 30 days of receipt and approval of monthly invoices, which shall include the applicable Order number. Payment shall be deemed to have been made as of the date the Town mails the payment or electronically transfers funds to the Supplier. The Town shall not be required to pay disputed items until the dispute is resolved. Payment of any invoice shall not act as a waiver of the Town’s right to recover in full any over-payment revealed by any subsequent audit or inspection. Incorrect payments to the Supplier due to omission, error, fraud, or defalcation may be recovered from the Supplier by deduction from subsequent payments.

6. CHANGES IN THE SERVICES. The Town Representative may, by written notice to the Supplier, extend the Start or Completion Date or make changes in the Services necessary or convenient to accomplish the purpose of this Order. The Supplier shall not commence any changed or increased Services prior to receipt of a duly-executed change order unless directed by the Town as provided herein. The Town shall have no duty or obligation whatsoever to compensate or to reimburse the Supplier for any additional Services not specifically authorized as provided herein.

7. TERMINATION. The Town reserves the right to terminate this Order, in whole or in part, with or without cause by written notice to the Supplier. In the event of termination, the Supplier shall incur no additional expenses and shall perform no further Services under this Order after the date of receipt of the notice of termination, unless otherwise specified by the Town. The Town shall pay the Supplier for all Services satisfactorily performed prior to the receipt of the notice termination and as specified in the notice. In the event that the Town terminates this Order for cause, the provisions of the paragraph titled “Damages” shall apply.

8. DAMAGES. If the Supplier fails to comply with any provision of this Order, the Supplier shall be liable for any and all damages, including without limitation, the cost of procuring similar supplies or services and all other costs and expenses incurred by the Town because of such failure. The cost to complete the Services or any portion thereof which remains unperformed at the time of such termination, together with other damages, shall be deducted from any sum payable hereunder before final payment to the Supplier.

9. LICENSE RESTRICTIONS. Any use of Town-licensed software shall be subject to the terms and conditions of the applicable licenses between the Town and the software owner. The Supplier by execution of these terms and conditions agrees to be bound by the terms and conditions of the licenses and agrees to hold harmless the Town, its officers, employees and servants from any liability, claims, losses, damages, injury, costs and attorneys’ fees arising out of its access to the licensed software.

10. SECURITY AND ON-SITE PROCEDURES. At the option of the Town, all on-site personnel utilized by the Supplier shall undergo background checks and will be issued badges. Personnel utilized by the Supplier shall be required to display badges at all times while working on site. The Supplier shall be required to return to the Town Representative all badges issued to the Supplier within 10 days of the Completion Date (the “Return Date”). If the Supplier is unable to return all issued badges on or before the Return Date, then the Town will charge the Supplier fifty dollars ($50.00) per missing badge, which sum shall be deducted from any sum payable hereunder before final payment to the Supplier.

11. INDEMNIFICATION. The Supplier shall indemnify, defend, and hold the Town and its officials, officers, employees and agents harmless from and against any and all claims, damages, losses, demands for payment, injuries, costs, and expenses (including attorneys’ fees) relating to or arising out of: (a) any act or omission of the Supplier, its employees, agents or subcontractors in connection with this Order; (b) any breach of a covenant, representation or warranty made by the Supplier under this Order;

and (c) use by the Supplier of any intellectual property in connection with the Services (whether such intellectual property is owned by the Supplier or a third party) or the incorporation by the Supplier of intellectual property into the Services. Nothing in this Order shall be construed as a waiver of any defense available to the Town under the Colorado Governmental Immunity Act or any similar provision. This provision shall survive the completion of the Services and termination of this Order.

12. INDEPENDENT CONTRACTOR RELATIONSHIP. The Supplier acts as an independent contractor and is not acting as an agent, servant or employee of the Town.

The Supplier is solely responsible for necessary workers’ compensation insurance and shall be responsible for withholding and paying all federal and state taxes. The Supplier and its employees are not entitled to unemployment insurance benefits from the Town.

13. NONDISCRIMINATION. The Supplier shall not refuse to hire, discharge, promote or demote, or discriminate in matters of compensation against any person otherwise qualified solely because of race, creed, sex, color, national origin or ancestry, religion, disability, age, sexual orientation, gender identity, veteran status, or any other basis prohibited by federal, state, or local law.

14. WARRANTIES. The Supplier represents and warrants that: (a) It is fully qualified to perform the Services and will perform the Services in a timely, accurate and competent manner in accordance with the professional standards of the industry, provided that this warranty shall not abrogate any independent duty of care owed by the Supplier to the Town; (b) Any methodologies or programs or other intellectual property utilized under this Order were independently developed by it or duly licensed from third parties and shall neither infringe upon nor violate any patents, copyrights, trade secrets, or other proprietary or intellectual property rights of a third party; (c) If it is an entity, it is duly organized, validly existing, and in good standing under the laws of the State of Colorado; (d) The execution, delivery, and performance of this Order by the Supplier does not and will not: (1) require the consent of any undisclosed person or entity, (2) violate any legal requirement, or (3) conflict with, or constitute a breach or violation of (i) its entity’s organizational documents, if any, or (ii) the terms or provisions of any other agreement, instrument, or understanding by which the Supplier is bound or affected.

15. ASSIGNMENT AND SUBCONTRACTING. The Supplier may not assign this Order, in whole or in part, without the Town’s prior written consent. The Supplier shall not employ any subcontractor or sub-consultant without prior written approval of the Town Representative. Prior to commencing the Services, each subcontractor or sub-consultant shall provide the appropriate insurance as required under this Order. The Supplier shall be responsible for the coordination of its services and the acts and omissions of its agents, employees, subcontractors, and suppliers. The Supplier shall bind each agent and employee to the terms of this Order. The Town may terminate this Order if subcontracted by the Supplier without the prior written consent of the Town Representative.

16. RECORDS. The Supplier shall maintain all records, including working papers, notes, and financial records, which records shall be available to the Town for inspection and audit for a period of 3 years from the date of expiration or termination of this Order, unless the Supplier is notified in writing by the Town of the need to extend the retention period. Copies of such records shall be furnished to the Town upon request without charge by the Supplier.

17. TOWN’S OWNERSHIP OF DOCUMENTS/DELIVERABLES.

(a) Any data, documents, or other things or information provided by the Town to the Supplier or to which the Supplier has access during the performance of the Services

(the “Town Documents”) and any reports, drawings, results, conclusions of the Services or other writings or products produced by the Supplier in the performance of the Services (the “Deliverables”) shall be and remain the sole property of the Town at all times; and the Supplier shall not use any of the Deliverables or Town Documents for any other purpose. The Town shall retain all right, title, and interest in and to both the Town Documents and the Deliverables. The Supplier shall provide to the Town all of the Deliverables and return all Town Documents by the Completion Date or earlier termination of this Order. The Supplier shall not disclose to any third party any Town Document or Deliverable without the prior written approval of the Town unless required under the Colorado Open Records Act or other law.

(b) The Supplier hereby assigns exclusively to the Town, and its successors and assigns, any and all programs, inventions, improvements, and developments, including all patents, copyrights, trade secrets, or other proprietary rights related to the Services performed pursuant to this Order. The Supplier shall have no right to further market, develop, enhance and/or modify any Deliverables provided hereunder for other customers without the consent of the Town.

(c) All ideas, results, data, and other information developed by the Supplier as a result of performing the Services shall (1) be assigned and transmitted to the Town; (2) become the Town’s exclusive property; and (3) be regarded by the Supplier as confidential and shall not be disclosed to any other person.

18. CONFIDENTIALITY OF SYSTEMS. In addition to containing public record information, a substantial amount of the information stored in the Town’s networks and systems (collectively, the “System”) is confidential and is prohibited from unauthorized disclosure. Many programs, processes, and other software products in the Town’s possession are confidential and may be protected by copyright, trade secret, or other proprietary rights, and are not subject to unauthorized disclosure. All proprietary rights shall at all times remain with the Town, and no such rights are transferred to the Supplier. The Town is and shall remain the sole owner of any programs, data, or other information contained on the System, and at no time shall the Supplier have the right to license, sublicense, assign, sell, copy, modify, or otherwise make available to any third party, any portion of the System or any information contained on the System. The Supplier shall indemnify, defend, and hold harmless the Town and its elected officials, agents, and employees from and against any and all liability, claims, damages, and expenses (including reasonable attorneys’ fees) arising out of the Supplier’s unauthorized access to, modification, or disclosure of, such System information.

19. NOTICES.

(a) “Key Notices” under this Order are notices regarding any default, dispute, or termination. Key Notices shall be given in writing and shall be deemed received if given by: (i) electronic mail (as defined in subsection (b) below) when transmitted, if transmitted on a business day and during normal business hours of the recipient, and otherwise on the next business day following transmission, (ii) certified mail, return receipt requested, postage prepaid, 3 business days after being deposited in the United States mail, or (iii) overnight carrier service or personal delivery, when received. For Key Notices, the parties will follow up any electronic mail with a hard copy of the communication by the means described in subsections (a)(ii) or (a)(iii) above. The requirement for following up a Key Notice made by electronic mail with a hard copy shall be deemed waived by the receiving party upon acknowledgement, via electronic mail, within 3 business days of transmission of the Key Notice, that the Key Notice has been received. All other daily communications or notices between the parties that are not Key Notices may be done via electronic mail.

Notices shall be sent to the address or email stated in this Order.

(b) The parties agree that: (i) any notice or communication transmitted by electronic mail shall be treated in all manner and respects as an original written document; (ii) any such notice or communication shall be considered to have the same binding and legal effect as an original document; and (iii) at the request of either party, any such notice or communication shall be re-delivered or re-executed, as appropriate, by the party in its original form. The parties further agree that they shall not raise the transmission of a notice or communication, except for Key Notices, by electronic mail as a defense in any proceeding or action in which the validity of such notice or communication is at issue and hereby forever waive such defense. For purposes of this Order, the term “electronic mail” means email.

20. SEVERABILITY. Any provision of this Order which is prohibited or found to be unenforceable by a court of competent jurisdiction will be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.

21. SURVIVAL. Notwithstanding anything to the contrary, the parties understand and agree that all terms and conditions of this Order which require continued performance or compliance beyond the termination date of this Order shall survive such termination date and shall be enforceable as provided herein in the event of a failure to perform or comply by a party to this Order.

22. WAIVER. This Order and its provisions may not be waived except in a writing signed by the party against whom enforcement is sought. The failure of a party to enforce any right arising under this Order on one or more occasions will not operate as a waiver of that or any other right on that or any other occasion.

23. OFFICIALS NOT TO BENEFIT. No elected or employed member of the Town government shall directly or indirectly be paid or receive any share or part of this Order or any benefit that may arise therefrom. The Supplier warrants that it has not retained any entity or person, other than a bona fide employee working solely for the Supplier, to solicit or secure this Order.

24. CONFLICT OF INTEREST. The Supplier shall not knowingly perform any act which would conflict in any manner with the performance of the Services. By acceptance of this Order, the Supplier certifies that it is engaged in no current project or business transaction, directly or indirectly, nor has it any interest, direct or indirect, with any person or business which might result in a conflict of interest in the performance of the Services.

25. ELECTRONIC SIGNATURES. The parties approve the use of electronic signatures for the execution, amendment, or any other action requiring a signature for this Order. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. §§24-71.3-101 to -121.