2-Software Addendum.pdf

TOWN OF PARKER ADDENDUM TO SOFTWARE AGREEMENT

1. PURPOSE AND EFFECT:

(a) This Addendum supplements and modifies the software agreement (the “Software Agreement”) between the Town of Parker, Colorado (the “Town”) and the software provider (the “Provider”) named on the Software Agreement governing the use of software being purchased by the Town (the “Software”). The Provider’s acknowledgment, acceptance of payment, or delivery or provision of the Software shall constitute the Provider’s unqualified acceptance of this Addendum. This

Addendum is provided in recognition of the Town’s legal and other restrictions as a governmental entity. Any conflict between this Addendum and the Software Agreement shall be resolved in favor of this Addendum.

(b) This Addendum will continue to apply to any future modifications of the Software Agreement if such modifications are permitted by the Software Agreement.

(c) The Town’s issuance of a purchase order referencing the Software Agreement or authorized signature on the Software

Agreement constitutes the Town’s acceptance of the Software Agreement subject to this Addendum. Any required acceptance of the Software Agreement by a Town employee, whether by signature or electronic acceptance shall only be effective as a ratification of the Town’s acceptance of the Software Agreement subject to this Addendum.

2. GOVERNING LAW; JURISDICTION; VENUE: The rights and duties of the parties under the Software Agreement 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 the Software Agreement. Venue for any and all legal actions arising hereunder shall lie in the District Court in and for the County of Douglas, State of Colorado.

3. PUBLIC RECORDS: The Software Agreement and this Addendum, upon execution, shall be public records subject to disclosure under the Colorado Open Records Act or any other legal disclosure requirement.

4. ACCESSIBILITY: The Provider represents and warrants that as of July 1, 2024, the Software shall be fully compliant and shall maintain constant compliance with the Web Content Accessibility Guidelines (“WCAG”) 2.1 A and AA Standards published by the World Wide Web Consortium, or such other standards as may be adopted by the Colorado Governor’s Office of Information

Technology as the minimum accessibility standards pursuant to C.R.S. §24-85-103 and the regulations promulgated pursuant thereto (the “Accessibility Standards”) during the term of the Software Agreement. The Provider shall perform regular scans, but in no event less than once per calendar year, of the Software to ensure that it continues to meet the Accessibility Standards.

5. INDEMNIFICATION:

(a) The Provider agrees to indemnify, defend, and hold the Town and its officials, officers, employees and agents harmless from and against: i) any and all third-party claims alleging that the Software infringes the third-party’s intellectual property rights;

ii) any breach of the Provider’s confidentiality or data security obligations described in the Software Agreement; and iii) claims arising out of Provider’s non-compliance with the Accessibility Standards. Nothing in the Software Agreement or

Addendum 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 termination of the Software Agreement. If requested by the

Town, the Provider shall, at its own expense procure the right to continue using the Software or replace or modify the same so that they become non-infringing.

(b) Given the Town’s status as a governmental entity, the Provider may not settle a claim against the Town without the Town’s written authorization.

(c) Any requirement contained in the Software Agreement of the Town to indemnify, defend, hold harmless Provider or any other party, or otherwise become responsible for another party’s liability, is hereby rejected and deleted from the Software

Agreement. The Town cannot legally indemnify another party. The Town shall also not be liable for any interest payment levied as a result of a late payment.

6. LIMITATIONS OF LIABILITY: Any limitations or exclusions of Provider’s liability shall not apply to Provider’s obligations under the Software Agreement or this Addendum to indemnify the Town, protect confidential information, or provide security of

Town data.

7. INSURANCE: Provider shall acquire and maintain insurance coverage adequate to protect it from liability arising out of the

Software Agreement and this Addendum.

8. TAXES: The Town is a tax-exempt governmental entity and shall not be liable for payment of any taxes under the Software

Agreement.

9. ATTORNEY FEES AND COSTS: The Town does not agree to any clauses relating to the award of attorney’s fees or costs.

10. DISPUTE RESOLUTION:

(a) Any obligation to resolve a dispute between the parties by mandatory arbitration is hereby rejected and deleted from the

Software Agreement.

(b) Any waiver by the Town to a jury trial is hereby rejected and deleted from the Software Agreement.

(c) Any right of the Provider to terminate the Software Agreement if the Town commences or participates in any legal proceeding against the Provider is hereby rejected and deleted from the Software Agreement.

(d) Any limitation on the time that the Town may commence a legal action against the Provider is hereby rejected and deleted from the Software Agreement. The Town rejects any waiver of the benefit of any statute of limitations which specifies a period longer than 1 year for filing an action or proceeding against the Provider.

11. LICENSE RESTRICTIONS: Any limitation on the Town’s right to reverse engineer or copy the features or functionality of the Software is except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

12. NON-APPROPRIATION:

(a) The payment of Town obligations hereunder in fiscal years subsequent to the current year are contingent upon funds being appropriated and budgeted. If funds for the Software are not appropriated and budgeted in the year subsequent to the fiscal year of the execution of the Software Agreement the Town may terminate the Software Agreement. The Town’s current

TOWN OF PARKER ADDENDUM TO SOFTWARE AGREEMENT

fiscal year is the calendar year. Additionally, such cancellation shall not impose any penalty against the Town in the event of a failure to appropriate sufficient funds.

(b) The Town does not agree to any automatic renewals provided for in the Software Agreement unless the Town has the opportunity to opt out or terminate the Software Agreement prior to renewal.

13. SEVERABILITY: Any provision of the Software Agreement or this Addendum 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.

14. ELECTRONIC SIGNATURES: The parties approve the use of electronic signatures for the execution, amendment, or any other action requiring a signature for the Software Agreement or this Addendum.