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Home My WebLink AboutITRON - CONTRACT - CONTRACT - ITRONITRON, INC. MAINTENANCE AGREEMENT CONTRACT NO. SVC-0404-60966 This Maintenance Agreement ("Agreement") is between Itron, Inc., a Washington corporation ("Itron"), and City of Fort Collins, CO ("Customer"). This Agreement sets forth the terms and conditions under which Itron will provide maintenance services for the equipment and/or software listed on Attachment A ("Products"). Itron requires Customer to execute this Agreement before Itron will perform any maintenance services on the Products. SECTION]. ELIGIBILITYAND TERM OFAGREEMENT Customer represents that it is the owner or licensee of the Products maintained under this Agreement or, if not the owner or licensee, has authority from the owner or licensee to include the Products under this Agreement. The term of this Agreement shall commence on the date of execution by Customer and shall remaimi►fewtfor one (1) year after the latest warranty expiration date on the Products listed on Attachment A at the time this Agreement is executed by Customer (the "Initial Term"). Either party may, at any time after the Initial Term, withdraw Product models from this Agreement upon ninety (90) days prior written notice. When a Product is withdrawn from this Agreement, Customer will receive credit for any charges already paid for maintenance service beyond the date of withdrawal. Following the expiration of the Initial Term, this Agreement shall remain effective until terminated by either party upon ninety (90) days prior written notice, provided that either party may terminate this agreement at any earlier time pursuant to Section 5. SECTION 2. MAINTENANCE SERVICES Itron shall provide maintenance services to keep the Products listed on Attachment A in good working order in accordance with the then current applicable Itron Maintenance Policy ("Service(s)"). A copy of such policy for the first year of Service is attached 'hereto as Attachment B. Itron shall have reasonable access to the Products to provide Service thereon. SECTION3. ANNUAL CHARGES Service charges specified in Attachment A for each Product and any Product purchased or licensed subsequent to the effective date of this Agreement shall commence upon the expiration of the warranty period for said Product. The annual charges shall be prorated based upon actual warranty expiration dates. Annual charges shall be invoiced thirty (30) days prior to the first day of the year during which Services are to be provided. All invoices for annual charges shall be paid by Customer in U.S. dollars thirty (30) days from date of receipt of invoice. Itron may change the annual charge upon ninety (90) days prior written notice, provided that no such change shall be effective prior to expiration of the Initial Term. In no event shall the rates be modified more than once during any twelve month period. Changes requested by Customer to Product specifications, functionality, attachments, or features that are beyond the scope of Services may result in an adjustment of the specified basic annual charge. 0300 SECTION 4. TAXES In addition to the charges due under this Agreement, Customer agrees to pay amounts equal to any taxes and duties resulting from this Agreement, or any activities hereunder, exclusive of taxes based upon Itron's net income. In the event Customer is a tax exempt entity, Customer shall provide Itron with a copy of its tax exemption certificate upon execution of this Agreement. SECTION S. EARLY TERMINATION Either party may terminate this Agreement upon the occurrence of any of the following: (a) If a party becomes insolvent, executes an assignment for the benefit of creditors, or becomes subject to bankruptcy or receivership proceedings. Upon the occurrence of such default, the other party may, at its option and without notice to or demand on the party in default, declare this Agreement terminated. (b) If a party breaches a material provision of this Agreement, the other party may give written notice of the breach. If the breaching party fails to make progress to cure the breach to an extent satisfactory to the nonbreaching party within thirty (30) days, the nonbreaching party may terminate this Agreement upon written notice. In the event of termination, Customer shall receive a credit for any charges already paid for Services beyond the date of termination, however, in the event of nonpayment, all accrued charges shall become immediately due and payable. SECTION 6. GENERAL (a) Assignment. Customer shall not assign this Agreement, directly or indirectly, without the prior written consent of Itron; provided, however, that Customer may assign this Agreement to its successor in a merger or to the purchaser of all or substantially all of Customer's assets if such successor or purchaser agrees in writing to comply with the terms and conditions of this Agreement. (b) Governing Law. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Washington, U.S.A., without reference to choice of law principles that would result in application of laws other than the laws of the State of Washington. (c) Enforceability. If any provision in this Agreement shall be held to be invalid, illegal or unenforceable, the 4Z' *- validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. (d) Notices and Requests. Notices hereunder shall be in writing and shall be given by either party to the other by delivery or by mailing the same by prepaid registered mail addressed as specified below or to such other address as may be substituted by written notice by either parry to the other: Customer: Notices to Customer at address provided below. Itron: ITRON, INC. 2818 N. Sullivan Road Spokane, WA 99216 Attn: Contract Administrator Any such notice so given shall be deemed to have been received by the party to whom addressed on the day of delivery thereof. (e) Entire Agreement. Each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and further agrees that it is the complete and exclusive statement of the agreement between the parties with respect to Services. Any terms and conditions appearing on Customer's purchase orders or other authorizations shall not apply to or become a part of this Agreement; this Agreement may be modified or altered only by a written instrument that refers to and incorporates this Agreement and is duly executed by an authorized representative of each parry. (f) Headings Not Controlling. Headings used in this Agreement are intended for convenience or reference only and shall not control or affect the meaning or construction of any provision of this Agreement. SECTION 7. FORCE MAJEURE Neither party hereto shall be responsible for any failure or delay in the performance of any obligation hereunder if such failure or delay is due to a cause beyond the party's control, including, but not limited to acts of God, flood, fire, volcano, war, third -parry suppliers, labor disputes or governmental acts. SECTION 8. LIABILITY AND DISCLAIMER OF WARRANTY 1TRON'S AGGREGATE LIABILITY FOR DAMAGES TO CUSTOMER SHALL NOT EXCEED THE TOTAL ANNUAL AMOUNT PAID BY CUSTOMER TO ITRON HEREUNDER FOR THE APPLICABLE SERVICE. IN NO EVENT SHALL ITRON BE LIABLE, WHETHER 1N CONTRACT, NEGLIGENCE, TORT, OR ON ANY OTHER BASIS, FOR COVER OR FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION OF DATA, OR LOSS OF REVENUE, SAVINGS OR PROFITS) OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THE SALE, MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTERRUPTION IN THE OPERATION OF THE PRODUCTS. ITRON OFFERS NO WARRANTIES CONCERNING THE SERVICES OR ANY PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DATED AND EXECUTED this 3 c 7 day of o /0f'2Z:e— I Z00 CUSTOME • ity of Fort Collins, CO By: Name: An liii 5 Z� (Please Print) n Title: pr-A41F C /L �F T�iJ✓ZCN�S�Yv�Si't" •C%r'i(s'\ Address: qZ15 n . Md 5 0 n ) "d FI 0o r- 0-Be) Sqo �71) rt 0 / / 1 h T DSd.2 -05813 Phone Number: (R7 o) aai — 6 % % S Tax Exempt: No Yes If yes, attach copy of Tax Exemption Certificate. If a corporation or limited liability company, name the State or Province ITRI)N, INC. By: '0 Name: Title: in which formed