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HomeMy WebLinkAboutESRI ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE - CONTRACT - CONTRACT - 8851325p. ESRI QUOTATION TERMS AND CONDITIONS ESRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 All quotations are valid for ninety (90) days unless otherwise stated on the quotation form. These prices and terms are valid only for items purchased for use and delivery within the United States. This quotation information is proprietary and may not be copied or released other than for the express purpose of the current system selection and purchase. This information may not be given to outside parties or used for any other purpose without written consent from Environmental Systems Research Institute, Inc. (ESRI). To expedite your order, please reference the quotation number our yoga purchase order ORDER PROCESS The order process is initiated when ESRI receives an original purchase order or some form of advance payment. Several additional documents (e.g., Master License Agreement, credit application, Tax Exemption Certificate, etc.) may be required to complete the order process. Generally, the need for these documents varies by the type of software, data, Web -enabled services, subscriptions, professional services or other products ordered, which is determined upon receipt of the purchase order (or advance payment). If delivery must be expedited, please contact your marketing representative for assistance. IMPORTANT! Collectively, these documents contain the authorizations and information necessary to ship proper versions of the software or data on the correct media, or to initiate Web -enabled services, subscriptions, or professional services. Please return them promptly to avoid unnecessary delays in shipping or delivery. Please return all documents to ESRI Customer Service, or as otherwise directed. Please show the following remittance address on your purchase order: F.SRI, File No. 54630, Los Angeles, CA 90074-4630 ESRI LICENSE AGREEMENTS All ESRI software, data, Web -enabled services, and subscriptions offered in this quotation are commercial off -the -shelf items developed at private expense and subject to ESRI commercial license terms, unless specifically identified by ESRI as a non- commercial item. Professional services agreements may also include license terms. Most ESRI software, data, Web -enabled services and subscriptions are subject to the ESRI License Agreement included with the deliverable item as an on-line agreement or in the packaging as a shrink-wrap agreement. A copy is enclosed. If you license certain software or data, a Master License Agreement signed by both parties maybe required. Some ESRI software is copy protected with a software keycode or hardware key, and some software, data, Web -enabled services or subscriptions require registration or a password. You will be given instructions to access the keycode, register, or obtain a password through the ESRI Web site or by other means. MAINTENANCE After expiration of any complimentary period of maintenance that may apply to the licensed software, ESRI will quote maintenance payable annually in advance. A reinstatement fee applies when maintenance has lapsed. For software and data with optional multiyear maintenance for a discounted fee, the discounted maintenance fees are in consideration of, and contingent upon, your commitment to the maintenance term you elect in your order. For such multiyear maintenance, you may cancel the maintenance upon ninety (90) days advanced written notice to ESRI Customer Service, subject to payment of fifty percent (50%) of the outstanding maintenance fees for the maintenance term initially ordered. No other refund or reduction for cancellation is available. If you are ordering multi -year maintenance, please indicate a billing option on your purchase order by selecting a statement as indicated below. Option 1. If you are purchasing a product with multi -year maintenance terms and are issuing the purchase order for all years upfront, please include the following information on your purchase order: "This PO is in acceptance of quote # and covers the total amount for all years included in the multi -year maintenance term. ESRI may invoice the entire amount upon shipment.' Option 2. If you are purchasing a product with multi -year maintenance terms and are issuing the purchase order for the first year only, please include the following information on your purchase order (PO): "This PO is in acceptance of quote G-272/KMM Page 1 7/1/05 2. "Concurrent Use License." Licensee may install and use the Software, Data, and Documentation on computer(s) on a network, but the number of simultaneous users may not exceed the number of licenses acquired. 3. "Development Sewer License." Licensee may install and use the Software on a single computer to design and build applications that interface with or utilize server Software as described in the Documentation. 4. "Staging Server License." In addition to the Development Server License Rights, Licensee may use and install the Software for the following purposes: user acceptance testing, performance testing, load testing of other third -party software, staging new commercial data updates, and training activities. 5. "Deployment Server License." In addition to the Staging Server License Rights, Licensee may install and use the Software or Data to provide services to multiple users on the same or other computer(s). 6. "Term License." Licensee may use the subscription(s), Software, Web Services, and Data for a limited time period or while Licensee has available credits or transactions to use the subscription(s), Software, Web Services, and Data as described in the Documentation. When the license term, subscription, credits, or transactions expire, Licensee must either stop using the subset iption(s), Software, Web Services, and Data, and uninstall/clear data cache or renew or extend the license upon payment of applicable fees. 7. Extensions to Software programs follow the same scope of use as that granted for the corresponding Software programs. 8. The administration tools for the Software may be copied and redistributed throughout Licensee's organization. 9. User -developed ArcGIS Server administration tools may be copied throughout Licensee's organization, but the AreCatalog application (found in AI'cGIS Desktop) may not be copied. 10. The ArcIMS license includes the right to deploy MapObjects--Windows Edition applications on the Internet or intranet. Licensee shall not develop client/serve solutions with the ArcIMS Java Archive (JAR) files without a license for the MapObjects—Java Edition Developer Kit, 11. ESRI and its licensor(s) grant Licensee a nonexclusive, nontransferable, limited license to use, copy, and prepare derivative works by a. Translating "alroute.mld" (hereinafter "Dictionary") from the original text in the English language; and b. Editing "rele Atlas (TA) Data included within ArcLogistics Route. The license grant is conditioned as follows: a. The derivative works are for Licensee's internal use only; b. ESRI and its licensor(s) retain all exclusive right, title, and interest in and to benefits from the derivative works; and c. Licensee expressly waives and relinquishes any and all ownership including, but not limited to, copyright, moral rights, or any other statutory or common law claims to the derivative works. Licensee shall not translate, modify, or edit in any way the software name "ArcLogistics Route," any software logo, any third -party software, any text other than the Dictionary, or any Data other than TA Data. Additional license fees are required if ArcLogistics Route with Data is to be accessed by more than one (1) ArcLogistics Route licensee. 12. ArcPad SOFTWARE IS NOT LICENSED FOR NAVIGATIONAL USE. 13. "Dual Use License" means the Software may be installed on a desktop computer and may be used simultaneously with either a personal digital assistant (PDA) or handheld mobile computer so long as the Software is only used by a single individual at any one (1) time. 14. Developers must include the following attribution with any deployed MapObjeets application: "Portions of this compute program are owned by LizardTech, Inc., and are Copyright © 1995-2002 LizardTech, Inc., and/or the University of California. All rights reserved. U.S. Patent No. 5,710,835." 15. Deployment licenses for desktop or Internet application(s) may be subject to payment of additional license fees. 16. Licensee may deliver applications to its sublicensee(s) provided Licensee uses a written sublicense agreement that protects ESRI's rights in its Software, Data, Web Services, and Documentation to the same extent as the ESRI License Agreement including, but not limited to, the following terns: a. Sublicensec may not revere engineer, decompile, or disassemble the ESRI Software, Data, Web Services, or Documentation, except to the extent permitted by applicable law; copy for commercial use, transfer; or assign its rights under the license grant; b. Sublicensee may not use any ESRI Software, Data, Web Services, or Documentation, in whole or in part, separate from Licensee's executable application; and c. Third -party dependent or required components are redistributable subject to permission from the owner or author. Page 2 of 4 E300 5/07B 17. Licensee may use Business Objects Crystal Reports software only with the AreGIS Desktop Software with which it was acquired and subject to the Crystal Reports Professional License Agreement available on the media. however, for use of Crystal Reports software with Concurrent Use licenses, Licensee may install and use a Crystal Reports license on any computer on the network on which the AreGIS Desktop Concurrent Use Software is used. However, it may only be used with the ESRI Software with which it was acquired. Licensee may not use a software program or system to cache or queue report requests. 18. The Deployment license is per application per computer. 19. The MapObjects--Java Edition contains Java Archive files, which indicate they are authentic ESM-certificated files when used over the Internet. Licensee shall not use ESRI certification or reference ESRI as a source of trusted content in any modified MapObjeets Java Archive files. Licensee may deploy the unmodified Java class ESRI certified libraries as an integral part of the Licensee's application(s). 20. Licensee may reproduce and deploy the Software provided all of the following occur: (a) The Software is reproduced and deployed in its entirety; (b) a license agreement accompanies each copy of the Software that protects the Software to the same extent as the ESRI License Agreement, and the recipient agrees to be bound by the terms and conditions of the license agreement; (c) all copyright and trademark attributions/notices are reproduced; and (d) there is no charge or fee attributable to the use of the Software. 21. Licensee shall not withhold any substantial right (e.g., extension of credit) from any individual based solely on the individual's place of residence, as profiled in the Community Tapestry market segmentation system. 22. (a) ArcGIS Engine Runtime licenses shall not be used for Intel net and Server development and deployment. (b) An end user must license either AreGIS Engine Runtime Software or other AreGIS Desktop Software (AreView, ArcEditor, or ArcInfo) to obtain the right to run an ArcGIS Engine application on one (1) computer. (c) The ArcGIS Engine Runtime extensions shall not be used in combination with AicGIS Desktop Software to run AreGIS Engine applications. A single user can have multiple applications installed on one (1) computer for use only by that end user. 23. Licensee may redistribute the Data as described in the Redistribution Rights Matrix available at http://www.est-i.coiJlegal/, in the Help system, or in supporting metadata files, subject to the specific attribution descriptions and requirements for the dataset accessed. 24. EDN Software, Web Services, and Data may only be used by one (1) named developer per subscription solely for the purposes of research, development, testing, and demonstration of a prototype application. EDN Software and Data may be installed on multiple computers for use by any named EDN developer. 25. Use of any third -party owned data that is included in AreGIS Online, ArcGIS Data Appliance data product(s), or AreWeb Services shall be subject to the Use of Data Restrictions found at http://www.esri.com/legal/, which may be modified by ESRI from time to time. If a modification is unacceptable to Licensee, Licensee may cancel the subscription upon written notice to ESRL If Licensee continues to use the Web Services, Licensee will be deemed to have accepted the modification. 26. ArcSDE Personal is restricted to four (4) gigabytes of data. 27. ArcGIS Server Web ADP Runtime Software may not be deployed independent of Licensee's AreGIS Server Enterprise configuration. 28. Limited to ten (10) concurrent end users of non ArcGIS Server applications. This restriction includes use of ArcGIS Desktop Products, AreGIS Engine Products, and third party applications that connect directly to any ArcGIS Server geodatabase. 29. Can only be used with SQL Server 2005 Express. 30. Restricted to a maximum total of four (4) gigabytes of data. 31. Redundant Software installation(s) for failover operations may be implemented during the period the primary site is nonoperational. The redundant Software installation(s) shall remain dormant except for system maintenance and updating of databases while the primary site or any other redundant site is operational. 32. No redundant Software installation is permitted. 33. ArcGIS Online may only be utilized in conjunction with ArcGIS Desktop Software and AreGIS Explorer Software. 34. Licensee's organization is limited to the number of specified credits, transactions, geography, or number of users as described in the online product description. 35. Licensed end users shall not share client -side data cache derived from ArcGIS Online with other licensed end users or third parties. 36. Licensee may not download or store resulting data or information except for results derived from using AreWeb Services Address Manager. 37. Data provided with StreetMap may be used for mapping, geocoding, and routing purposes but is not licensed for dynamic routing purposes. For instance, StreetMap may not be used to alert a user about upcoming maneuvers (such as warning of an upcoming turn) or calculating an alternate route if a turn is missed. 38. ArcGIS Server 3 D extension included with ArcGIS Server (Workgroup or Enterprise) Standard and Advanced may only be used for generating globe data cache(s), or publishing a globe document as an ArcGIS Globe Service. No other use of Page 3 of 4 E300 5/07B the ArcGIS Server 3D Extension Software is permitted with ArcGIS Server Standard. ArcGIS Server 3D Extension can be used with ArcGIS Server Advanced if the additional license fees for the 3D extension have been paid. 39. Any editing functionality included with ArcGIS Sewer (Workgroup or Enterprise) is permitted for use only with AicGIS Server Advanced. 40. Geospatial Enterprise JavaBeans (EJB) provided with AreGIS Server (Workgroup or Enterprise) are permitted for use only with ArcGIS Server Advanced. 41. AreGIS hnage Server Seamline and Orthorectification extensions, included with AreGIS Image Server, can only be used with ArcGIS Image Server if the additional license fees for the extensions have been paid. 42. Licensee has the right to one (1) desktop deployment of the AreGIS Image Server Service Editor for every two sockets of ArcGIS Image Server licensed. Additional Service Editor desktop deployments can be licensed for an additional fee. Licensee has the right to use the Seamline and Orthorectification extensions with the desktop deployment of Service Editor, provided the appropriate Seamline and Orthorectification Extension license fees have been paid. Licensee must have a separate license of the Seamline and Orthorectification extensions for each additional Service Editor Deployment. 43. Licensee may develop an unlimited number of applications on a single computer and deliver the applications to end users with or without the Engine Runtime Software. Page 4 of 4 E300 5/07B # . This order is for the initial year of the multi -year maintenance term. We agree to issue a PO for each subsequent year in a pro rats amount per year to be invoiced annually in advance." Option 3: If you are purchasing a product with multi -year maintenance terms and are issuing the purchase order for all years upfront but want to be invoiced annually, please include the following information on your purchase order: "This PO is in acceptance of quote # and covers the total amount for all years included in the multi -year maintenance term. However, ESRI shall invoice annually in advance a pro rata amount for each year of the term." DATA DISCLAIMER Data is provided "AS IS" without warranty of any kind. The data has been obtained from sources believed to be reliable, but its accuracy and completeness are not guaranteed. The data may contain some nonconformities, defects, errors, or omissions. ESRI AND ITS LICENSOR(S) MAKE NO WARRANTY WITH RESPECT TO THE DATA. Without limiting the generality of the preceding sentence, ESRI and its licensor(s) do not warrant that the data will meet Licensee's needs or expectations, that the use of the data will be uninterrupted, or that all nonconformities can or will be corrected. ESRI and its licensor(s) are not inviting reliance on this data, and Licensee should always verify actual data including, but not limited to, map, spatial, raster, and tabular information. DELIVERY FOB Redlands, CA, USA Sofbvare: Allow thirty (30) days from ESRI's receipt of purchase order, signed Software License Agreemett(s), and other documents, as required. Hardware: Manufacture's terms apply. Lead times depend on make/models purchased. Note: Standard delivery method is ground or two-day air for software and surface carrier for hardware. Actual delivery method may vary depending on weight. Other service is available for an additional fee (e.g., overnight delivery). PAYMENT TERMS Net thirty (30) days, on approved credit. Order less than $800 require prepayment by check or credit card unless your organization is a government agency, university, college, or Fortune 500 company. TAXES Prices quoted do not include applicable sales or use taxes unless so stated. In preparing your budget, please allow for applicable sales tax. ESRI reserves the right to collect sales tax assessed by states as required by law. ESRI will add state sales tax to the invoice unless proof with the order is shown to ESRI that your organization is tax exempt or pays state tax directly. G-272/KMM Page 2 7/l/05 ESRI, 380 New York St., Redlands, CA 92373�8100 USA • TEL 909-793-2853 • FAX 909-793-5953 IMPORTANT —READ CAREFULLY UNLESS IT IS SUPERSEDED BY A SIGNED LICENSE AGREEMENT BETWEEN YOU AND ESRI, ESRI IS WILLING TO LICENSE TFIE SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION TO YOU ONLY IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS LICENSE AGREEMENT. PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE SOFTWARE, DATA, OR DOCUMENTATION WILL NOT BEGIN DOWNLOADING TO OR INSTALL ONTO YOUR COMPUTER SYSTEM UNTIL YOU HAVE MANIFESTED YOUR ASSENT TO THE TERMS AND CONDITIONS OF THE LICENSE AGREEMENT BY CLICKING "I accept the License Agreement" BELOW. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS AS STATED, THEN ESRI IS UNWILLING TO LICENSE THE SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION TO YOU, AND YOU SHOULD CLICK "I do not accept the License Agreement" BELOW AND RETURN THE PACKAGE TO ESRI OR ITS AUTHORIZED DISTRIBUTOR. SEE http://www.est-i.com/legal FOR UPDATED TERMS THAT MAY APPLY TO FUTURE VERSIONS OF SOFTWARE, DATA, WEB SERVICES, AND DOCUMENTATION. LICENSE AGREEMENT (E204 10/06) This License Agreement ("License Agreement") is between you ("Licensee") and Environmental Systems Research Institute, Inc. ("ESRI"), a California corporation, with a place of business at 380 New York Street, Redlands, California, 92373-8100, USA. ARTICLE I —DEFINITIONS Definitions —The terms used are defined as follows: a. "Beta" means any alpha, beta, or prerelease Software, Data, Documentation, or Web Services. b. "Data," except as otherwise provided herein, means any ESRI or third party data vendor(s) digital data set(s) including, but not limited to, geographic, vector data coordinates, raster, reports, or associated tabular attributes. c. "Documentation" means all of the printed and digital materials including, but not limited to, help files, user reference documentation, training documentation, or technical information and briefings. d. "Software" means the actual copy of all or any portion of ESRI's proprietary software technology, computer software code, components, dynamic link libraries (DLLs), underlying organization, object model, and programs delivered on any media, including any release provided in source, object, or executable code format(s), inclusive of backups, updates, service packs, patches, hot fixes, sample code, sample application, sample extension, or merged copies permitted hereunder. e. "Web Services" means software services or third party data components that perform GIS functions, tasks, or data services and are accessed over the Internet. ARTICLE 2—INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP The Software, Data, Web Services, and Documentation are licensed and not sold. ESRI and its Licensors own the Software, Data, Web Services, and Documentation, which are protected by United States laws and applicable international laws, treaties, and conventions regarding intellectual property or proprietary rights, inclusive of trade secrets. From the date of receipt, Licensee agrees to use reasonable means to protect the Software, Data, Web Services, and Documentation from unauthorized use, reproduction, distribution, or publication. ESRI and its Licensors reserve all rights not specifically granted in this License Agreement. ESRI or its third -party data licensor(s) reserve the right to improve and/or make changes in its offerings of the Web Services and its associated software, damsets, or information at any time. Page 1 of 6 E204 10/06 ARTICLE 3—GRANT OF LICENSE 3.1 Grant of License —Subject to the terms of this License Agreement, ESRI grants to Licensee a personal, nonexclusive, nontransferable license to a. Use the type and number of copies of the Software, Data, and Documentation and access Web Services (i) for which the appropriate license fees have been paid to ESRI or its authorized distributor, (ii) for Licensee's own internal use only, and (iii) in accordance with Exhibit I and the licensed configuration on file as authorized by ESRI or its authorized distributor. b. Access and use any secure ESRI Web site resources made available to Licensee for Licensee's internal use only, provided that Licensee follows ESRI's terms of use policy specified therein. All password or controlled access information provided by ESRI or its authorized distributor shall be treated as ESRI confidential information. 3.2 Beta License —Licensee may be accepted into a current Beta Testing Program. Licensee may be provided copies of, or access to, Beta for the limited purpose of testing Beta in accordance with the Beta testing policies then in effect. Delivered Beta is confidential and proprietary to ESRI and contains trade secrets, inclusive of unpublished specifications. Licensee agrees to retain all Beta in confidence. Except for a "public" Beta Testing Program, Licensee shall maintain results of testing, performance statistics, errors, or any other quality issues encountered in confidence and agrees not to disclose same to any third party. Beta is subject to change prior to its commercial release and may never be commercially released. Licensee acknowledges that such Beta is not suitable or licensed for full use and accepts all responsibility for use of the same and any results generated. Licensee may from time to time provide suggestions or comments regarding performance, usability or effectiveness, bug reports, test reports, or other feedback (collectively, "Feedback") to ESRI with respect to Beta. ESRI retains title to such comments and may freely use, disclose, reproduce, license, distribute, and otherwise commercialize any Feedback. A Beta "resting Program may have additional requirements. See a description at http://www.esri.com/software/ maintenance/benefits/beta-program. htm I. 3.3 Evaluation License—ESRI may from time to time offer a limited term license(s) for Software, Data, Web Services, or Documentation for Licensee's evaluation only. 3.4 Educational Use License —If Licensee has been qualified by ESRI or its authorized distributor to receive education pricing, Licensee agrees to use the Software, Data, Web Services, and Documentation solely for educational, research and academic purposes that are noncommercial in nature. Licensee shall not use the Software, Data, Web Set -vices, and Documentation for any profit -generating activities. 3.5 Consultant Access —Licensee may provide access to the Software, Data, Web Services, or Documentation to any consultant or contractor of Licensee, provided that the consultant or contractor is using the Software, Data, Web Services, or Documentation exclusively for the benefit of Licensee. Licensee shall be responsible for compliance by consultants or contractors with the terms and conditions of this License Agreement. Licensee shall require consultant or contractor to discontinue use of, and access to, Software, Data, Web Services, and Documentation upon completion of work for Licensee. ARTICLE 4—SCOPE OF USE 4.1 Permitted Uses a. Licensee may install and store copies of Software, Data, and Documentation onto electronic storage device(s). b. Licensee may 'make one (1) copy of the Software, Data, and Documentation for archival purposes. Licensee may make routine computer backups. c. Licensee may customize the Software using any (i) macro or scripting language, (it) published application programming interface (API), or (iii) source or object code libraries, but only to the extent that such customization is described in the Documentation. d. Licensee may use, copy, or prepare derivative works of the Documentation supplied in digital format and thereafter reproduce, display, and redistribute the customized documentation only for Licensee's own internal use. The portion(s) of the Documentation supplied in digital format merged with other software and printed or digital documentation shall continue to be subject to the terms and conditions of this License Agreement and shall provide the following copyright attribution notice acknowledging the proprietary rights of ESRI and its licensor(s) in the Documentation supplied in digital format: "Portions of this document include intellectual property of ESRI and its licensor(s) and are used herein under license. Copyright © [Insert the actual copyright date(s) frronr the source »wterials] ESRI and its lieensor(s). All rights reserved." Page 2 of 6 E204 10/06 4.2 Uses Not Permitted a. Except as provided herein, Licensee shall not sell, rent, lease, sublicense, lend, assign, or time-share the Software, Data, Web Services, or Documentation. Licensee shall not act as a service bureau or commercial Application Service Provider (ASP) that allows third party access to the Software, Data, Web Services, and Documentation. A commercial ASP means a Licensee who uses Software, Data, Web Services, or Documentation for a site or service, and operates the site or the service for a profit, or generates revenue by charging for access to the site or service. b. Licensee shall not redistribute the Software to third parties, in whole or in part, including, but not limited to, extensions, components, or DLLs without the prior written approval of ESRI as set forth in an appropriate redistribution license agreement. c. Licensee shall not reverse engineer, decompile, or disassemble the Software, Data, Web Services, or Documentation, except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction. d. Except to the extent that applicable law prohibits this restriction, Licensee shall not make any attempt to circumvent the technological measure(s) that controls access to, or use of, the Software, Data, Web Services, and Documentation. e. Licensee shall not redistribute the Software registration number/license authorization file(s), developer license file(s), or Web Services access codes. f. Licensee shall not use the Software or Web Services to transfer or exchange any material where such transfer or exchange is prohibited by intellectual property laws or any other applicable laws. g. Licensee shall not remove or obscure any ESRI or its licensor(s) patent, copyright, trademark, or proprietary rights notices contained in or affixed to the Software, Data, Web Services, or Documentation. h. Licensee shall not unbundle individual or component parts of the Software or Data for independent use. ARTICLE 5—TERM AND TERMINATION The license is effective upon acceptance of this License Agreement and shall continue until (i) such time that Licensee elects in writing to discontinue use of the Software, Data, Web Services, or Documentation and terminates the license; (it) expiration of a term license or subscription; or (iii) either party terminates the license for a material breach that is not cured within ten (10) days of written notice to the other party, except that termination is immediate for a material breach of a nature that it is impossible to cure. Upon termination of a license, Licensee shall (i) cease access and use of Web Services and clear Web Services client -side data cache or (ii) uninstall, remove, and destroy all Software, Data, and Documentation, and any whole or partial copies, modifications, or merged portions in any form and execute and deliver evidence of such actions to ESRI or its authorized distributor. ARTICLE 6—LIMITED WARRANTIES AND DISCLAIMERS 6.1 Limited Warranties —For a period of ninety (90) days from the date of receipt of Software authorization or keycode file(s) by Licensee, ESRI warrants that (i) the unmodified Software will substantially conform to the published Documentation and (ii) the media upon which the Software, Data, and Documentation is provided will be free from defects in materials and workmanship under normal use and service. 6.2 Data and Web Services Disclaimer —If included under this License Agreement, the Data and Web Services have been obtained from sources believed to be reliable, but the accuracy and completeness of the Data and Web services are not guaranteed. The Data and Web Services may contain some nonconformities, defects, errors, or omissions. ESRI AND ITS LICENSOR(S) MAKE NO WARRANTY WITII RESPECT TO THE DATA AND WEB SERVICES AND ARE PROVIDED "AS IS." Without limiting the generality of the preceding sentence, ESRI and its licensor(s) do not warrant that the Data and Web Services will meet Licensee's needs or expectations, that the use of the Data and Web Services will be uninterrupted, or that all nonconformities can or will be corrected. ESRI and its licensor(s) are not inviting reliance on this Data or Web Services, and Licensee should always verify actual Data or Web Services. 6.3 Fault'Tolera ce Disclaimer a. The Software, Data, Web Services, and Documentation are not fault -tolerant and are not designed, manufactured, or intended for use or resale for use in insurance underwriting or with critical health and safety or online control equipment in hazardous environments that require fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation, m communication systems, air traffic control, real-time emergency response, real-time terrorism prevention or response, life support, or weapons systems ("Fault -Intolerant Activities"). ESRI SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR USE IN FAULT -INTOLERANT ACTIVITIES. Page 3 of 6 E204 10/06 b. To the extent permitted by law, Licensee agrees to indemnify, defend, and hold ESRI, its officers, directors, employees, agents, subcontractors, licensors, successors, and assigns harmless from and against any and all liability, losses, claims, expenses (including attorneys' fees), demands, or damages of any kind, including direct, indirect, special, punitive, incidental, or consequential damages, arising out of or in any way connected with Licensee's use or permitting the use by others of the Software, Web Services, and Data for Fault -Intolerant Activities. Delivery of the Software, Web Services, and Data does not constitute a waiver of the rights and obligations set forth in this Article. 6.4 Special Disclaimer —SAMPLE CODE, SAMPLE APPLICATION, SAMPLE EXTENSION, HOT FIXES, EVALUATION SOFTWARE, AND BETA ARE DELIVERED "AS IS" WITHOUT WARRANTY OF ANY KIND. LICENSEE ASSUMES ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE SAMPLE CODE, SAMPLE APPLICATION, SAMPLE EXTENSION, HOT FIXES, EVALUATION SOFTWARE, AND BETA. 6.5 Internet Disclaimer —BOTH PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS, AND THAT (1) THE INTERNET IS NOT A SECURE. INFRASTRUCTURE, (2) NEITHER PARTY HAS CONTROL OVER THE INTERNET, AND (3) NEITHER PARTY IS LIABLE FOR DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE WEB SERVICE. 6.6 General Disclaimer —EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, ESRI DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, SYSTEM INTEGRATION, AND NONINFRINGEMENT. ESRI DOES NOT WARRANT THAT THE SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION WILL MEET LICENSEE'S NEEDS, OR THAT LICENSEE'S OPERATION OF THE SAME WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL NONCONFORMITIES CAN OR WILL BE CORRECTED. 6.7 Exclusive Remedy —Licensee's exclusive remedy and ESRPs entire liability for breach of the limited warranties set forth in this Article 6 shall be limited, at ESRI's sole discretion, to (i) replacement of any defective media; (ii) repair, correction, or a work -around for the Software subject to the ESRI Support Services Policy; or (iii) return of the license fees paid by Licensee for the Software or Documentation that does not meet ESRI's Limited Warranty, provided that Licensee uninstalls, removes, and destroys all copies of the Software or Documentation and executes and delivers evidence of such actions to ESRI or its authorized distributor. ARTICLE 7—LIMITATION OF LIABILITY 7.1 Disclaimer of Certain Types of Liability—ESRI AND ITS LICENSOR(S) SHALL NOT BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS; LOST SALES OR BUSINESS EXPENDITURES; INVESTMENTS; COMMITMENTS IN CONNECTION WITH ANY BUSINESS; LOSS OF ANY GOODWILL, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT OR USE OF TIIE SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT ESRI OR ITS LICENSOR(S) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 7.2 General Limitation of Liability —EXCEPT AS PROVIDED IN ARTICLE 8—INFRINGEMENT INDEMNITY, ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WAI(RAN'I Y, MISREPRESENTATION, OR OTHERWISE, SHALL NOT EXCEED TIIE AMOUNTS PAID TO ESRI BY LICENSEE FOR SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION PURSUANT TO THIS LICENSE AGREEMENT. 7.3 Applicability of Disclaimers and Limitations —Licensee agrees that the limitations of liability and disclaimers set forth in this License Agreement will apply regardless of whether Licensee has accepted the Software, Data, Web Services, or Documentation or any other product or service delivered by ESRI. The parties agree that ESRI has set its prices and entered into this License Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an Page 4 of 6 E204 10/06 allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. ARTICLE 8—INFRINGEMENT INDEMNITY 8.1 ESRI shall defend, indemnify, and hold harmless Licensee from and against any loss, liability, cost, or expense, including reasonable attorneys' fees, which may be incurred by Licensee against any claims, actions, or demands by a third party alleging that the Software, Data, or Documentation infringes a U.S. patent, copyright, or trademark provided a. Licensee promptly notifies ESRI in writing of the claim thereof; b. ESRI has sole control of the defense of any actions and negotiations related to the defense or settlement of any claim; and c. Licensee cooperates fully in the defense of the claim. 8.2 If ESRI believes that the Software, Data, or Documentation is or will become the subject of an infringement claim, or in the event that use of the Software, Data, or Documentation is enjoined, ESRI, at its own expense, may either (i) obtain the right for Licensee to continue using the Software, Data, or Documentation or (ii) modify the Software, Data, or Documentation to make it noninfringing while maintaining substantially similar software functionality or data/informational content. If neither of such alternatives is commercially reasonable, the infringing items shall be returned to ESRI, the license shall terminate, and ESRI's sole liability shall be to indemnify Licensee pursuant to Article 8.1 and refund license fees paid by Licensee prorated on a five (5) year, straight line depreciation basis beginning from the initial date of delivery. 8.3 ESRI shall have no obligation hereunder to defend Licensee or to pay any resulting costs, damages, or reasonable attorneys fees for or with respect to any claims, actions, or demands alleging (i) infringement that arises by reason of combination of noninfringing items, however acquired, with any items not supplied by ESRI; (ii) infi ingement to the extent arising from material alteration of the Software, Data, or Documentation by anyone other than ESRI, its agents, or its contractors; (iii) the direct or conk ibutory infi ingement of any process patent by Licensee through the use of the Software, Data, or Documentation other than a process patent that is necessarily infringed by the internal processes executed within the Software or Data itself when the Software or Data is executed for its intended purpose; (iv) continued allegedly infringing activity by Licensee after it has been notified of the possible infringement; or (v) continued allegedly infringing activity by Licensee to the extent it arises from failure of Licensee to use the updated or modified Software, Data, or Documentation provided by ESRI for avoiding infringement. THE FOREGOING STATES THE ENTIRE OBLIGATION OF ESRI WITH RESPECT TO INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. ARTICLE 9—GENERAL PROVISIONS 9.1 Export Control Regulations —Licensee expressly acknowledges and agrees that Licensee shall not export, reexport, or provide the Software, Data, Web Services, or Documentation, in whole or in part, to (i) any country to which the United States has embargoed goods; (ii) any person on the U.S. Treasury Department's list of Specially Designated Nationals; (iii) any person or entity on the U.S. Commerce Department's Table of Denial Orders; or (iv) any person or entity where such export, reexport, or provision violates any U.S. export control laws or regulations including amendments and supplemental additions as they may occur from time to time. Licensee shall not export the Software, Data, Web Services, and/or Documentation or any underlying information or technology to any facility in violation of these or other applicable laws and regulations including, but not limited to, the terms of any export license or licensing provision. Licensee represents and warrants that it or its employees, consultants, or customers who gain access to the Software, Data, Web Services, or Documentation are not a national, resident, located in or under the control of or acting on behalf of any person, entity, or country subject to such U.S. export controls. 9.2 Taxes and Fees, Shipping Charges —License fees quoted to Licensee are exclusive of any and all taxes or fees including, but not limited to, sales tax, use tax, value-added tax (VAT), customs, duties, or tariffs, and shipping and handling charges. 9.3 No Implied Waivers —The failure of either party to enforce any provision of this License Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision. Page 5 of 6 E204 10/06 9.4 Severability—The parties mutually agree that if any provision of this License Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make the intent of the language enforceable. 9.5 Successor and Assigns —Licensee shall not assign, sublicense, or transfer Licensee's rights or delegate its obligations under this License Agreement without ESRI's prior written consent, and any attempt to do so without consent shall be void. This License Agreement shall be binding upon the respective successors and assigns of the parties to this License Agreement. Notwithstanding, a Government contractor that has acquired Software, Data, Web Services, or Documentation under contract to the Government may assign its rights under this License Agreement to its Government customer upon written notice to ESRI provided the Government customer assents to the terms of this License Agreement. 9.6 Survival of Terms —The provisions of Articles 2, 5, 6, 7, 8, and 9 of this License Agreement shall survive the expiration or termination of this License Agreement. 9.7 Equitable Relief —Licensee agrees that any breach of this License Agreement by Licensee may cause irreparable damage and that, in the event of such breach, in addition to any and all remedies at law, ESRI shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction without tine requirement of posting a bond or undertaking or proving injury as a condition for relief. 9.8 Government Licensee —The Software, Data, Web Services, and Documentation are commercial computer software, commercial data, commercial computer software documentation, and commercial Web Services, This License Agreement contains ESRI's commercial license terms and conditions for such items. The commercial license rights in this License Agreement strictly govern Licensee's use, reproduction, or disclosure of the Software, Data, Web Services, and Documentation. No other license terms or conditions shall apply unless expressly agreed in writing by P,SRI and Licensee. ESRI Software source code is unpublished and all rights to the Software, Data, Web Services, and Documentation are reserved under copyright laws of the United States. In the event any court, arbitrator, or board holds that the Licensee has greater rights to any portion of the Software, Data, Web Services, or Documentation under applicable public procurement law, such rights shall extend only to the portions affected. 9.9 Governing Law, Arbitration a. Licensees in lire United States ofAmerica, Its Territories, and Outlying Areas —This License Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to conflict of laws principles. Except as provided in Article 9.7, any dispute arising out of or relating to this License Agreement, or the breach thereof, which cannot be settled through negotiation, shall be finally settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator may be entered in a court of competent jurisdiction. If Licensee is a U.S. Government agency, this License Agreement is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613), in lieu of the Arbitration provisions of this clause. b. All Other Licensees —Except as provided in Article 9.7, any dispute arising out of, or relating to, this License Agreement or the breach thereof, which cannot be settled through negotiation, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one (1) arbitrator appointed in accordance with said Rules. The language of the arbitration shall be in English. The place of the arbitration shall be at a mutually agreed location. This License Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Either party shall, at the request of the other, make available documents or witnesses relevant to the major aspects of the dispute. 9.10 Entire Agreement —This License Agreement including Exhibit 1 constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous license agreements, understandings, and arrangements between the parties relating to such subject matter. Additional or different terms included with an order or other document shall not be binding upon ESRI. Any modification(s) or amendment(s) to this License Agreement must be in writing and signed by each party. Page 6 of 6 E204 10/06 e, e, "`�•°, EXHIBIT 1 SCOPE OF USE (E'300 5/07B) ESRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAx 909-793-5953 The scope of use for each ESRI Software identified below is described in the applicable footnotes listed in parentheses. Desktop GIS • AieReader (I and 20) • ArcView (either 1, 2, or 6 and 17) • ArcEditor (either 1, 2, or 6 and 17 and 26) • Arcbnfo (either 2 or 6 and 17, and 26) • ArcGIS Desktop Extensions (7) • At cView 3.x and Extensions (1, 7, and 17) Server GIS • ArcGIS Server and Extensions - Workgroup (either 3, 5, or 6 and 7, 8, 9, 28, 29, 30,32,38,39,arid 40) - Enterprise (3, 4, 5, or 6 and 7, 8, 9, 27, 31, 38, 39, and 40) • ArcIMS -- ArcIMS and Extensions (either 3, 4, 5, or 6 and 7, 8, 10, and 31) -- ArcIMS AreMap Sever (either 3, 4, 5, m 6 and 31) • Tracking Server (5 and 31) • AreGIS bnage Serve and Extensions (either 3, 4, 5, or 6 and 7, 8, 31, 41, and 42) RouteMAP IMS (either 3, 4, or 5 and 8, 15, and 31) Mobile GIS ArcPad (1, 12, and 13) • ArePad Application Builder (1) AreGIS Mobile ADF Application Deployments (I, 15, and 16) Developer GIS • ESRI Developer Network (EDN) Software, Web Services, and Data (6, 7, 24, 25, 33, 34, 35, and 36) • AreGIS Engine Developer Kit (either I or 6 and 14, 15, 22 and 43) - Extensions (7) • AreGIS Engine Runtime (1, 15, and 22) - Extensions (7) • MapObjects-Windows Edition (1, 14, 15, 16, and 18) MapObjects-Java Edition (1, 5, 8, 15, 18, and 19) MapObjects LT (1, 14, and 16) • NetEngine (I, 5, and 15) • NetEngine Internet (5) GIS Viewers and Connectors • ArcExplorer-Java and Windows Editions (I and 20) • ArcGIS Explorer (1 and 20) • ArcGIS For AutoCAD (I and 20) Business GIS • ArcGIS Business Analyst (either 1 or 2) • ArcView Business Analyst (1) • ArcLogistics Route (either 1 or 2 and 1 I ) • BusinessMAP (1) Cartographic Production • Maplex (1) • Military Overlay Editor (1) • Production Line Tool Set (PETS) for ArCGIS, GIS Data ReViewer, Job Tracking for AreGIS (JTX) (either 1 or 2), Job Tracking for ArcGIS Server (either 4 or 5 and 7) Web Services • ArcGIS Online (6, 25, 33, 34, and 35) • AreWeb Services (6, 16, 25, and 36) Data • ESRI Map Data (either I or 5 and 23 and 37) • Demographic Data (either I or 5) - CommunityInfo - Retail Marketplace - Consumer Expenditure • Community "Capesty Data - For Appending to Customer Records (6 and 21) - For Area Profiles (either 1 or 2 and 21) • Community Coder (6 and 21) • Sourcebooh•Anverica (1) • Portfolio Product Suite (1) • ArcGIS Data Appliance (6, 23, and 25) • AreGIS Data Appliance (Server Bundle) (6, 23, and 25) • AreGIS Data Appliance (Data Only) (6, 23, and 25) 1. "Single Use License." Licensee may permit a single authorized end user to install and use the Software, Data, and Documentation on a single computer for use by that end user on the computer on which the Software is installed. Remote access is not permitted. Licensee may permit the single authorized end user to make a second copy for end user's exclusive use on a portable computer so long as only one (1) copy of the Software, Data, and Documentation is in use at any one time. Page I of 4 E300 5/07B