Loading...
HomeMy WebLinkAbout425774 ESRI INC - CONTRACT - AGREEMENT MISC - ESRI• Gesri ® ENTERPRISE LICENSE AGREEMENT (E119G 06/2009) Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 Agreement No. 2012ELA2273 This Enterprise License Agreement including the documents listed below (collectively, "Agreement" or "ELA") is between City of Fort Collins ("City"), with its main offices located at 215 N Mason St., Fort Collins, CO 80524, and Environmental Systems Research Institute, Inc. ("Esri"), and is effective as May 28, 2012 ("Effective Date"). This Agreement provides for the licensing and deployment of certain Esri Software, delivery of ELA maintenance, and provision of Esri International User Conference registrations and any additional services as specified herein. This Agreement is comprised of the following documents which are incorporated herein by reference: 1. Enterprise License Agreement signature page(s), E119GM 2. Enterprise License Terms and Conditions, E512, including; • Appendix A, Software and Deployment Schedule • Appendix B, Enterprise License Fee Schedule ■ Appendix C, City Annual Deployment Report ■ Appendix D, ELA Points of Contact ■ Appendix E, Tier 1 Help Desk Authorized Individuals License Agreement —Agreement No. 2012MLA2273 Introduction page, E100M General License Terms and Conditions, E200, Esri Exhibit 1, Scope of Use, E300 Note: Licensee is defined on first page of item 2 above. 4. Training Terms and Conditions, E207 The parties acknowledge that they have read and understand this Agreement and agree to be bound by the terms and conditions contained herein. This Agreement constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous agreements, proposals, presentations, understandings, and arrangements between the parties relating to such subject matter. Any modifications or amendments to this Agreement must be in writing and signed by an authorized representative of each party. ACCEPTED AND AGREED: CITY OF FORT COLLINS (City) By: fll� A t orized Signature Printed Name: (� Title:-ti>���62 (fir- 1 cYZ �N14S�Z3 �.tSt4r• l.T Date: �-}��/ ]� ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. (Esri) By: Authorized Signature Printed Name: Title: Date: EI 19GM Page I of 1 06/2009 13.2 Survival of Certain ELA Clauses. The provisions of Section 7.3 and Article 8 of this Enterprise License Terms and Conditions document (E512) will survive the expiration or termination of this ELA. E512G Page 6 of 11 01/19/2012 APPENDIX A SOFTWARE AND DEPLOYMENT SCHEDULE City may Deploy the Enterprise License Software up to the total quantity of licenses indicated below to Licensees during the term of this ELA. Table A-1 Enterprise License Software —Unlimited Ouantities Product Total Qty/Seats Desktop Software Arclnfo, ArcEditor, ArcView Unlimited Desktop Extension Software 3D Analyst, Spatial Analyst, Geostatistical Analyst, Network Analyst, ArcGIS Publisher, ArcGIA Schematics, ArcGIS Workflow Manager, ArcGIS Data Reviewer, ArcGIS ArcScan, Maplex for ArcGIS Unlimited Server Software and Extensions ArcGIS Server Workgroup and Enterprise (Advanced, Standard, and Basic;) Unlimited ArcGIS Server Extensions — 3D Analyst, Network Analyst, Spatial Analyst, Geostatistical, Schematics, ArcGIS Workflow Manager, Image Unlimited ArcGIS Engine Runtime Unlimited ArcGIS Engine Runtime Extensions 3D Analyst, Geodatabase Update, Mapley, Network, Schematics, and Spatial Unlimited Esri Mapping and Charting—Esri Production Mapping Unlimited Table A-2 Enterprise License Software —Limited Quantities Item Rolled -In Qty. Qty./Seats to Be Deployed Total ArcPad 1 0 1 Esri Business analyst Desktop 1 0 1 Data Interoperability Extension 1 0 1 Esri Developer Network (EDN) annual subscriptions N/A 2 2 ArcGIS Online (when commercially available) Limited users, annual subscription N/A 1 1 E5126 Page 7 of 11 01/19/2012 13.2 Survival of Certain ELA Clauses. The provisions of Section 7.3 and Article 8 of this Enterprise License Terms and Conditions document (E512) will survive the expiration or termination of this ELA. E512G Page 6 of 11 01/19/2012 APPENDIX B ELA FEE SCHEDULE The ELA Fee is $312,000.00. The ELA Fee is in consideration of the Enterprise License Software, ELA Maintenance, and Esri International User Conference registrations. Year 1 Year 2 Year 3 ELA Fee 2012 2013 2014 ELA Payments $100,000 $104,000 $108,000 $312,000 Number of Esri International User 6 6 6 Conference registrations per Year Number of Tier 1 Help Desk 3 3 3 Individuals Support Incidents for EDN per Year One One One 10-Pack 10-Pack 10-Pack Term of ELA pursuant to Section 7.1 1 Three (3) years from Effective Date (Optional) Training Pass Training Pass annual subscription fee is $12,625 and is not included in the ELA Fee. City may exercise its Year 1 option to include the Training Pass subscription by referencing it in the initial ELA purchase order described in Article 5 of this ELA. Options for either ELA Year 2 or ELA Year 3 Training Pass subscriptions may be exercised by referencing it in the applicable annual purchase order. Training courses are subject to Esri training terms and conditions found attached to this ELA. Year 1 2012 Year 2 2013 Year 3 2014 Total Optional Annual Training Pass $12,625 $12,625 $12,625 $37,875 Training Days 25 25 25 Training days can be applied to City site training, instructor led training (either at an Esri facility or online classroom) and Virtual Campus self -led web courses. Days that are not used will roll over to the next year of this ELA. E512G Page 8 of 11 01/19/2012 APPENDIX C CITY ANNUAL DEPLOYMENT REPORT SAMPLE REPORT —This report will be provided to Esri annually as an Excel spreadsheet or in a comparable format. Esri Annual ELA License Deployment Repo t Customer Name Customer Number Date Prepared b PRODUCT Count PRODUCT Count Desktop —Concurrent Use (CU) ArcGIS Server Desktop —Single Use (SU) ArcGIS Server Extensions Desktop Extensions Other E512G Page of 11 01/19/2012 APPENDIX C CITY ANNUAL DEPLOYMENT REPORT SAMPLE REPORT —This report will be provided to Esri annually as an Excel spreadsheet or in a comparable format. Esri Annual ELA License De Io ment Repo t Customer Name Customer Number Date Prepared b PRODUCT Count PRODUCT Count Desktop —Concurrent Use (CU) ArcGIS Server Desktop —Single Use (SU) ArcGIS Server Extensions Desktop Extensions Other E5 12G Page 9 of 11 01 / 19/2012 APPENDIX D ELA POINTS OF CONTACT Either party may change its point of contact by written notice to the other party. 1. Esri point of contact for order processing issues: Name: Customer Service Esri Redlands 380 New York Street Redlands, CA 923 73-8 100 E-mail: service6Desri.com Phone: 888-377-4575 Fax: 909-307-3083 2. Esri contact for Tier 2 Support issues: E-mail: support(cDesri.com Phone: 909-793-3774 (domestic US only) Fax: 909-792-0960 Web: sportn esri.com 3. City centralized point of contact for order release and administrative issues: Name: Mh2co_5 13DC E-mail: M ROO/6 0 i-_'_ C nM Phone: 970- /-Fl/ -2050 Fax: Q71J—ZZI'E'3�q 4. All deliverables to City will be shipped to the address listed below: City Office: I _r Dcpr Name: h.pl L .301Q1 _' Address: ?.15" N M /430/</ S% - LLD �C IiYJI� i'r rr�/a/n/s, rc9 4D52L�-4�roZ 5. All notices to City will be mailed to the address listed below: City Office: I T ( : Name: l'f} L05 0 / 7- Address: Z S- N P0501AI 5T, R C, I3OX 5-80' tE1[ rou'4'nl S CO !3D5-ZZ-05g0 E512G Page10 of11 01/19/2012 APPENDIX E TIER 1 HELP DESK AUTHORIZED INDIVIDUALS Below are named Tier 1 Help Desk individuals authorized to seek Tier 2 Support from Esri. Substitutes/Changes to Tier 1 Help Desk authorized individuals may be made by written notice to Esri. 1. Name: Address: Phone: Fax: E-mail: 3. Name: Address: Phone: Fax: E-mail: 2. Name: Address: Phone: Fax: E-mail: E512G Page 11 of 11 01/19/2012 eesrie MASTER LICENSE AGREEMENT Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 Agreement No. 2012MLA2273 This Master License Agreement ("License Agreement") is between the licensee printed below ("Licensee") and Environmental Systems Research Institute, Inc. ("Esri"). The License Agreement includes (i) this page, (ii) the General License Terms and Conditions, and (iii) the Exhibit I listed below. The parties acknowledge that they have read and understood this License Agreement and agree to be bound by the terms and conditions hereof. This License Agreement constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous agreements, understandings, and arrangements between the parties relating to such subject matter, and any terms on Licensee's purchase order. Any modification(s) or amendment(s) to this License Agreement must be in writing and signed by an authorized representative of each party. CITY OF FORT COLLINS (Lice By \ A A th ized Signature Printed Name: Title:2ilrR ��- Date: ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. (Esri) By: Authorized Signature Printed Name: Title: Date: Licensee Contact Information Contact: MAI C W S Al),01(- Telephone: 1�7 70 - 'f4 Z�S� Address: 2/.� /16/•/yYlW ! j 1004 n !;7& City, State, ZIP: !- l-• C..;Pawt G' �/O�ZZ' Jt'��, Fax: el 70-/ - �2 ( to p' J E-mail: OG1 +U � L Lei OV.['.U.M General License Terms and Conditions E200 Esri Exhibit 1 E300 E100M Page 1 of 1 11/2008 E512G Page12 of11 01/19/2012 QDesriENTERPRISE LICENSE TERMS AND CONDITIONS Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 ARTICLE 1—DEFINITIONS All definitions in other parts of the ELA will have the same meaning in this Enterprise License Terms and Conditions. In addition, the following definitions apply to the ELA: • "Deploy," "Deployment," or "Deployed" means to redistribute, or the redistribution of, the Enterprise License Software (and its related keycodes/registration files), or its having been redistributed, by City, during the term of this ELA for installation and use by Licensee. ■ "ELA Fee" means the fee set forth in Appendix B, ELA Fee Schedule. ■ "ELA Maintenance" means Tier 2 Support, updates, and patches provided by Esri for Enterprise License Software and Rolled -In Software. ■ "Enterprise License Software" means the Software (which includes Data, Web Services, and Documentation provided with the particular item as separately licensed) identified in Table A-1 and Table A-2 of Appendix A, Software and Deployment Schedule. Enterprise License Sofware does not include unit -priced item(s) or Esri technology that may be embedded in third -party products purchased by Licensee. • "Incident" means a failure of the Software to operate according to the Documentation where such failure substantially impacts operational or functional performance. • "License Agreement" means Esri contract 2012MLA2273, referenced on the signature page of this ELA. • "Licensee" means City of Fort Collins. For avoidance of doubt, the definition of Licensee will not include consultants or contractors. • "Rolled -In Software" means Software of the same type as Enterprise License Software that Licensee acquired for use prior to the Effective Date that is current on paid maintenance (as shown in Esri's customer service records) and that receives ELA Maintenance during the term of the ELA. ■ "Technical Support" means a process to attempt to resolve reported Incidents through error correction, patches, hot fixes, and workarounds; replacement deliveries; or any other type of Software, Data, or Documentation corrections or modifications specified in the most current applicable Esn US Software Maintenance Program. • "Tier I Help Desk" means City point of contact from which all Tier I Support will be given to Licensee. • "Tier 1 Support" means the Technical Support provided by the Tier I Help Desk as the primary contact to Licensee in its attempted resolution of reported Incidents. • "Tier 2 Support" means the Technical Support provided by Esri to the Tier I Help Desk when the Incident cannot be resolved through Tier I Support. ARTICLE 2—GRANT OF LICENSE 2.1 Grant of License. Licensee's use of the Enterprise License Software is subject to the License Agreement and any additional terms set forth in this Article 2 and in Article 3 below. Rolled -In Software will be licensed in accordance with the License Agreement. 2.2 Beta License. Beta licenses are not available under this ELA as Enterprise License Software. Beta Software, Beta Data, and Beta Web Services, if requested and provided, will be licensed separately and individually under the terms of the License Agreement (see Beta License in Section 3.2 of the General License Terms and Conditions-'E200) only. No other benefits, grants, or rights provided in this ELA shall apply or be provided/granted. 2.3 Consultant Access. Section 3.4. Consultant Access, of the General License Terms and Conditions—E200 in the License Agreement is modified to add the following restriction: Access to and use of any Enterprise License Software is restricted to use by consultants and contractors for the sole benefit of Licensee while (i) working on -site at Licensee's facilities; (ii) remotely accessing or using Enterprise License Software from Licensee's on-site'computers or machines; or (iii) remotely accessing or using Enterprise License Software from a third party's computers or machines under contract to Licensee. Licensee shall require consultant or contractor to discontinue access to and use of Enterprise License Software upon completion of work for Licensee. E512G Page I of 11 01/19/2012 • Gesr I • GENERAL LICENSE TERMS AND CONDITIONS (E200 04/19/2010) Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 ARTICLE 1—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" means any Esri or third -party digital dataset(s) including, but not limited to, geographic vector data coordinates, raster, reports, or associated tabular attributes, licensed under this License Agreement. c. "Documentation" means all printed and digital materials including, but not limited to, help files, user reference documentation, training documentation, or technical information and briefings. d. "Samples" means sample code, sample applications, add-ons, or sample extensions of Software, Data, Documentation, or Web Services. e. "Software" means all or any portion of Esri s proprietary software technology accessed or downloaded from an Esri authorized website or delivered on any media in any format including backups, updates, service packs, patches, hot fixes, or permitted merged copies. f. "Term License" means licenses provided for use in a limited time period or on a subscription or transaction basis. g. "Web Services" means software services or Esri or third -party data provided by Esri that perform geographic information system (GIS) functions, tasks, or data services and are accessed over the Internet. ARTICLE 2—INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP Software, Data, Web Services, and Documentation are licensed and not sold. Esri and its licensors own Software, Data, Web Services, Documentation, and all copies, which are protected by United States and applicable international laws, treaties, and conventions regarding intellectual property and proprietary rights including trade secrets. Licensee agrees to use reasonable means to protect Software, Data, Web Services, and Documentation from unauthorized use, reproduction, distribution, or publication Esri and its third -party licensors reserve all rights not specifically granted in this License Agreement including the right to change and improve Web Services. 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 solely to a. Use the type and number of copies of Software, Data, and Documentation and access Web Services (i) for which the applicable license fees have been paid, (ii) for Licensee's own internal use, and (iii) in accordance with Exhibit 1 and the licensed configuration on file as authorized by Esri. b. Access and use any secure Esri website resources made available to Licensee for Licensee's own internal use, provided that Licensee follows Esri s terms of use policy specified therein. All password or controlled access information provided by Esri shall be treated as Esri confidential information. 3.2 Beta License. Licensee may be accepted into a current Beta Testing Program. a. If Licensee is accepted into the Beta Testing Program, Esri will provide to Licensee access to Beta and will grant Licensee a personal, nonexclusive, nontransferable, royalty -free Term License to use Beta at the authorized and identified test sites solely for the purpose of testing Beta as delivered, in accordance with the Beta Testing Program guidelines and the terms of this License Agreement. This grant of license is effective from the date Licensee is accepted into the program or date of receipt of any Beta until the date of the commercial release of Software from Esri Customer Service or the date of termination of the Beta Testing Program for the specific Beta, whichever is sooner. b. Licensee agrees to provide suggestions or comments regarding performance, usability or effectiveness, bug reports, test reports, or other feedback (collectively, "Feedback") to Esri with respect to Beta. E200 Page I of 6 04/19/2010 c. Licensee grants to Esri the right to freely use, share, disclose, reproduce, license, distribute and otherwise publicly display and perform any Feedback provided to Esri by Licensee. Licensee will not provide Feedback that Licensee knows or reasonably should have known contains content subject to license or use restrictions. d. Beta and Feedback contain confidential information and trade secrets that are proprietary to Esri. Licensee agrees to use commercially reasonable means (at least as great as those used by Licensee for its own confidential information) to maintain the integrity, confidentiality, and Esri proprietary rights in Beta and Feedback Licensee may not share or release Feedback or results of Beta testing with any third party. e. Beta is subject to change prior to its commercial release or may never be commercially released. Licensee acknowledges that Beta is not suitable or licensed for full use in any production system and accepts all responsibility for use and any results generated. 3.3 Evaluation License. Esri may from time to time offer Tent License(s) for Software, Data, Web Services, or Documentation for Licensee's evaluation only. 3.4 Consultant or Contractor Access. Subject to Section 3.1, Esri grants Licensee the right to provide access to and use of Software, Data, Web Services, or Documentation to any consultant or contractor of Licensee exclusively for the benefit of Licensee. Licensee shall be solely responsible for compliance by consultants and contractors with this License Agreement. Access to or use of Software, Data, Web Services, and Documentation by consultants or contractors not exclusively for the benefit of Licensee is prohibited. ARTICLE 4—SCOPE OF USE 4.1 Permitted Uses a. Licensee may install and store Software, Data, and Documentation on electronic storage device(s). b. Licensee may make one (1) copy of Software, Data, and Documentation for archival purposes. Licensee may make routine computer backups. c. Licensee may customize Software using any (i) macro or scripting language, (ii) published application programming interface (API), or (iii) source or object code libraries, but only to the extent that such customization is described in Documentation. d. Licensee may use, copy, or prepare derivative works of Documentation supplied in digital format and thereafter reproduce, display, and redistribute the customized documentation only for Licensee's own internal use. Portion(s) of Documentation supplied in digital format merged with other software and printed or digital documentation are subject to this License Agreement. Licensee shall include the following copyright attribution notice acknowledging the proprietary rights of Esri and its licensors: "Portions of this document include intellectual property of Esri and its licensors and are used herein under license. Copyright © [Insert the actual copyright date(s) from the source materials] Esri and its licensors. All rights reserved." 4.2 Uses Not Permitted a. Except as provided herein, Licensee shall not sell, rent, lease, sublicense, lend, assign, or time-share 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 Software, Data, Web Services, and Documentation. Licensee shall not use Software, Data, Web Services, or Documentation for a site or service and operate the site or the service for a profit or generate revenue through direct or indirect methods (e.g., advertising or by charging for access to the site or service). b. Except as provided herein, Licensee shall not redistribute Software, Data, or Web Services to third parties, in whole or in part, including, but not limited to, extensions, components, or DLLs. c. Licensee shall not reverse engineer, decompile, or disassemble 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 Software, Data, Web Services, and Documentation. e. Except as provided herein, Licensee shall not redistribute Software activation number(s), registration number/license authorization file(s), developer license file(s), or Web Services access codes to third parties. f. Licensee shall not use 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. E200 Page 2 of 6 04/19/2010 g. Licensee shall not remove or obscure any Esri or its licensors' patent, copyright, trademark, or proprietary rights notices contained in or affixed to Software, Data, Web Services, or Documentation. h. Licensee shall not unbundle individual or component parts of Software or Data for independent use. i. After a reasonable transition period, Licensee shall not use an older version of the Software that Licensee has updated to a newer version. Licensee shall not use more Software licenses at any given time than the total quantity in Licensee's licensed configuration on file with Esri. ARTICLE 5—TERM AND TERMINATION This License Agreement is effective upon acceptance. This License Agreement and any licenses granted hereunder shall continue until (i) such time that Licensee elects in writing to discontinue use of Software, Data, Web Services, or Documentation and terminates the license; (ii) expiration of a Term License; 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 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 and (ii) cease use, 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. ARTICLE 6—LIMITED WARRANTIES AND DISCLAIMERS 6.1 Limited Warranties. Except as otherwise provided in this Article 6, Esri warrants that (i) the unmodified Software will substantially conform to the published Documentation and (ii) media on which the Software, Data, and Documentation are provided will be free from defects in materials and workmanship under normal use and service for a period of ninety (90) days from the date of receipt. 6.2 Data and Web Services Disclaimer. Data and Web Services may contain some nonconformities, defects, errors, or omissions. THE DATA AND WEB SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. Without limiting the generality of the preceding sentence, Esri and its licensors do not warrant that Data and Web Services will meet Licensee's needs or expectations, that the use of Data and Web Services will be uninterrupted, or that all nonconformities can or will be corrected. Esri and its licensors are not inviting reliance on Data or Web Services, and Licensee should always verify actual Data or Web Services 6.3 Special Disclaimer. SAMPLES, HOT FIXES, PATCHES, 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 SAMPLES, HOT FIXES, PATCHES, EVALUATION SOFTWARE, AND BETA. 6.4 Internet Disclaimer. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS AND THAT (i) THE INTERNET IS NOT A SECURE INFRASTRUCTURE, (ii) THE PARTIES HAVE NO CONTROL OVER THE INTERNET, AND (iii) NONE OF THE PARTIES SHALL BE 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. 6.5 General Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, ESRI DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ESRI DOES NOT WARRANT AND DISCLAIMS THAT SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION WILL MEET LICENSEE'S NEEDS; THAT LICENSEE'S OPERATION OF THE SAME WILL BE UNINTERRUPTED, ERROR -FREE, FAULT -TOLERANT, OR FAIL-SAFE; OR THAT ALL NONCONFORMITIES CAN OR WILL BE CORRECTED. SOFTWARE, DATA, WEB SERVICES, AND DOCUMENTATION ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS THAT MAY LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL PROPERTY/ENVIRONMENTAL DAMAGE. ANY SUCH USE SHALL BE AT LICENSEE'S OWN RISK AND COST. E200 Page 3 of 6 04/19/2010 6.6 Exclusive Remedy. Licensee's exclusive remedy and Esri s 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 workaround for Software subject to the Esri Maintenance Program found at www.esri.com/leeal/maintenance.html; or (iii) return of the license fees paid by Licensee for Software or Documentation that does not meet Esri s limited warranty, provided that Licensee uninstalls, removes, and destroys all copies of Software or Documentation and executes and delivers evidence of such actions to Esri. ARTICLE 7—LIMITATION OF LIABILITY 7.1 Disclaimer of Certain Types of Liability. ESRI AND ITS LICENSORS SHALL NOT BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS, LOST SALES, OR BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS COMMITMENTS; 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 SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION, HOWEVER CAUSED ON ANY THEORY OF LIABILITY, WHETHER OR NOT ESRI OR ITS LICENSORS HAVE 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 WARRANTY, MISREPRESENTATION, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID 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 Software, Data, Web Services, or Documentation or any other product or service delivered by Esri. The parties agree that Esri has set its fees and entered into this License Agreement in reliance on the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 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 parry alleging that Software infringes a US patent, copyright, or trademark, provided a. Licensee promptly notifies Esri in writing of the claim; b. Licensee provides documents clearly describing the allegations of infringement; c. Esri has sole control of the defense of any actions and negotiations related to the defense or settlement of any claim; and d. Licensee cooperates fully in the defense of the claim. 8.2 If Software is found to infringe a US patent, copyright, or trademark, Esri, at its own expense, may either (i) obtain rights for Licensee to continue using Software or (ii) modify the allegedly infringing elements of Software while maintaining substantially similar software functionality or data/informational content. If neither alternative is commercially reasonable, the infringing item(s) shall be returned to Esri, the license shall terminate, and Licensee shall uninstall the infringing items. Esri s entire liability shall then be to indemnify Licensee pursuant to Section 8.1 and to refund license fees paid by Licensee for the infringing item(s), prorated on a five (5)-year, straight-line depreciation basis beginning from the initial date of delivery. 8.3 Esri shall have no obligation to defend Licensee or to pay any resulting costs, damages, or attorneys' fees for any claims or demands alleging direct or contributory infringement of Software by (i) the combination of or integration with a product, process, or system not supplied by Esri; (ii) material alteration by anyone other than Esri or contractors acting on behalf of E200 Page 4 of 6 04/19/2010 Esri; (iii) use after Licensee has been notified of possible infringement; or (iv) use after modifications are provided or a return is ordered by Esri under Section 8.2. 8.4 In no event shall the indemnification set forth in this Article 8 apply to any Samples, Beta, or evaluation software delivered hereunder. 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 Future Orders/Updates. New or updated Software, Data, Web Services, and Documentation may require additional or differing terns for use. New or updated Software, Data, Web Services, and Documentation shall be governed by the then - current Esri license terms and conditions. Updated versions of the license terms and conditions will be available on Esri's website, included with a quote, or included with the deliverable Software, Data, Web Services, or Documentation. 9.2 Export Control Regulations. Licensee expressly acknowledges and agrees that Licensee shall not export, reexport, transfer, or release Software, Data, Web Services, or Documentation, in whole or in part, to (i) any US embargoed country (or to a national or resident of any US embargoed country); (ii) any person on the US Treasury Department's list of Specially Designated Nationals; (iii) any person or entity on the US Commerce Department's Denied Persons List, Entity List, or Unverified List; or (iv) any person or entity where such export or reexport violates any US export control laws or regulations including, but not limited to, the terms of any export license or license exemption and any amendments and supplemental additions to US export laws as they may occur from time to time. 9.3 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. 9.4 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. 9.5 Severability. The parties 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. 9.6 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 this License Agreement to its government customer upon written notice to Esri, provided the government customer assents to the terms of this License Agreement. 9.7 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. 9.8 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 the requirement of posting a bond or undertaking or proving injury as a condition for relief. 9.9 US 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 Esri and Licensee. Esri Software source code is unpublished and all rights to the Software, Data, Web Services, and Documentation are reserved. In the event any court, arbitrator, or board holds that Licensee has greater rights to any portion of the Software, Data, Web E200 Page 5 of 6 04/19/2010 Services, or Documentation under US procurement law, such rights shall extend only to the portion affected, and use, duplication, or disclosure by Licensee is subject to restrictions as provided in FAR 52.227-19(b) (DEC 2007), FAR 52.227- 14 (ALT III) (DEC 2007), DFARS 252.227-7015 (NOV 1995), or NFS 1852.227-86 (DEC 1987). 9.10 Governing Law, Arbitration. This License Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without reference to conflict of laws principles, except that US federal law shall govern in matters of intellectual property. 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. 9.11 Maintenance. Maintenance for qualifying Software or Data consists of updates and other benefits such as access to technical support, specified in Esri's most current applicable software maintenance policy. 9.12 Patents. Licensee may not seek, and may not permit any other user to seek, a patent or similar right worldwide that is based on or incorporates any Esri technology or services. This express prohibition on patenting shall not apply to Licensee's software and technology except to the extent that Esri technology or services, or any portion thereof, are part of any claim or preferred embodiment in a patent application or a similar application E200 Page 6 of 6 04/19/2010 EXHIBIT 1 Gesrie SCOPE OF USE (E300 02/27/2012) Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 The scope of use for the Software, Data, and Web Services identified below is described in the applicable footnotes identified in parentheses. Software • ArcExplorer-Java and Windows Editions (20and 25) • ArcGIS API for iOS, Windows Phone, or Android (I, 16, 25, and 33) • ArcGIS Desktop - Arclnfo (either I or 2 and 25, 26, 33, 44, and 45) - ArcEditor (either I or 2 and 25, 26, 33, 44, and 45) - ArcView (either I or 2 and 25, 33, 44, and 45) • ArcGIS Desktop Extensions (7) • ArcGIS Engine Developer Kit and Extensions (1, 14, 15, 22, 25, 26, and 43) • ArcGIS Engine Runtime and Extensions (either I or 2 and 15, 22, 25,26,and 33) • ArcGIS Explorer (20, 25, and 33) • ArcGIS for AutoCAD (1, 20, and 25) • ArcGIS for iOS (1, 25, and 33) • ArcGIS Mobile Deployments (1, 15, 16, 25, 33, and 54) • ArcGIS Runtime (1, 15, 18, 33, 35, and 59) ■ ArcGIS Runtime SDK (1, 15, 18, 33, 35, and 60) • ArcGIS Server - Workgroup (either 3 or 5 and 8, 9, 25, 28, 29, 30, 32, 33, 38, 39, 40, and 45; if licensed as a Term License, 6 will also apply) - Enterprise (either 3, 4, or 5 and 8, 9, 25, 27, 31, 33, 38, 39, 40, and 45; if licensed as a Term License, 6 will also apply) > Cloud Bundle (6 and 33) • ArcGIS Server Extensions - ArcGIS for INSPIRE (7, 8, 33, and 35) - ArcGIS Server Geoportal Extension (either 3, 4, or 5 and 7 and 52) - ArcGIS Server Image Extension (7, 8, and 42) - ArcGIS Server Image Extension Service Editor (1) - Other Extensions (7) • ArcGIS Web Mapping (including SharePoint, JavaScript, Adobe Flex, Microsoft SilverlightfWPF, SOAP, and REST) (6,33, and 35) ■ ArcIMS - ArcIMS and Extensions (either 3, 4, or 5 and 8, 10, 31, and 45) • Arc Logistics - Desktop (1 and 25) - Using ArcGIS Online (6, 20, 25, 34, 35, and 46) - Using ArcGIS Server (6, 20, 25, 34, 35, and 46) - Navigator (I and 46) • ArcPad (1, 12, 13, 25, and 33) • ArcReader (20, 25, 33, and 45) • ArcView 3.x and Extensions (1, 7, and 17) • Esri Aeronautical Solution (either I or 2) • Esri Business Analyst (Canadian Edition) (either I or 2 and 6, 25, 33, 36, and 45) • Esri Business Analyst (either I or 2 and 25, 33, 45, and 48) • Esri Business Analyst Online API for Adobe Flex, Microsoft Silverlight, SOAP, and REST (6, 16, 25, 33, 35, 55, and 56) • Esri Business Analyst Server - Workgroup (either 3, 4, or 5 and 8, 9, 21, 25, 28, 29, 31, 33, 39, 40, 45, and 48) -'Enterprise (either 3, 4, or 5 and 8, 9, 21, 25, 27, 31, 33, 39, 40, 45, and 48) • Esri Business Analyst Server (Canadian Edition) (either 3, 4, or 5 and 8, 9, 21, 25, 27, 31, 33, 36, 39, 40, and 45) • Esri Business Analyst Server Developer (3, 6, 25, 33, 35, and 51) • Esri Business Analyst Server Developer (Canadian Edition) (3, 6, 25, 33, 35, 36, and 51) ■ Esri CityEngine (either I or 2 and 44) • Esri Defense Mapping (either I or 2) • Esri Developer Network (EDN) Software, Web Services, and Data (6, 7, 24, 25, 26, 33, 34, and 35) • Esri File Geodatabase API (47) • Esri Maps for IBM Cognos (5 and either 49 or 53) ■ Esri Nautical Solution (either I or 2) • Esri Production Mapping (either I or 2) • Geoportal Clients for ArcGIS (7, 20, and 52) • MapObjects-Java Edition (1, 5, 8, 15, 18, and 19) • MapObjects LT (1, 14, and 16) • MapObjects-Windows Edition (1, 14, 15, 16, and 18) • MOLE (1) • NetEngine Internet (5) • Portal for ArcGIS (5, 6, 31, 33, 61, 62, and 63) • Tracking Server (either 4 or 5 and 31) Web Services • ArcGIS Online Services (6, 25, 33, 34, and 35) • Esri Business Analyst Online (6, 25, 33, 48, 56, 57, and 58) • Esri Business Analyst Online Mobile (1, 6, 25, 33, 48, 56, 57, and 58) • Esri Community Analyst (6, 25, 33, 48, 56, 57, and 58) • Esri MapStudio (6, 25, 33, 34, 35, and 56) • Esri Redistricting Online (6, 25, 33, 34, and 35) Data ■ Data with ArcGIS Data Appliance (6, 23, 25, and 41) ■ Esri Address Coder (either 1, 2, or 5 and 21, 22, 25, and 48) ■ Esri Business Analyst (Canadian Edition) Data (either I or 2 and 6, 21, 25, 33, 36, and 45) • Esri Business Analyst Data (either I or 2 and 21, 25, 33, 45, and 48) • Esri Business Analyst Server (Canadian Edition) Data (either 3, 4, or 5 and 21, 25, 33, 36, and 45) ■ Esri Business Analyst Server Data (either 3, 4, or 5 and 21, 25, 33, 45, and 48) • Esri Data & Maps (either I, 2, 3, 4, or 5 and 23 and 37) • Esri Data (either 1, 2, or 5 and 25 and 48) - Demographic, Consumer Spending, Market Potential, Retail Marketplace, Business, Traffic, Shopping Center, Cable Boundaries, Banking, and Crime ■ Sourcebook•America (I and 21) • StreetMap Premium (either 1, 2, 4, or 5 and 6 and 25) • Tapestry Segmentation (either 1, 2, or 5 and 21 and 48) E300 Pagel of 5 02/27/2012 I . "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 users exclusive use on a portable computer as long as only one (1) copy of the Software, Data, and Documentation is in use at any one (1).time. No other end user may use the Software, Data, or Documentation under the same license at the same time for any other purpose. 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. No other end user may use the Software, Data, or Documentation under the same license at the same time for any other purpose. 3. "Development Server 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." License is provided for use for a limited time period or on a subscription or transaction basis. 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 ArcCatalog application (found in ArcGIS 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/server solutions with the ArcIMS—Java Archive (JAR) files without a license for the MapObjects—Java Edition developer kit. 11. Reserved 12. Software is only licensed for navigational use when used in conjunction with ArcLogistics. 13. "Dual Use License" means the Software may be installed on a desktop computer and used simultaneously with either a personal digital assistant (PDA) or handheld mobile computer as 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 MapObjects application: "Portions of this computer program are owned by LizardTech, Inc., and are Copyright © 1995-2002 LizardTech, Inc., and/or the University of California. All rights reserved. US 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 terms: a. Sublicensee may not reverse 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. d. Applications may be subject to deployment fees owed to Esri. Licensee shall contact its distributor for details. 17. Licensee may use Business Objects Crystal Reports software only with the ArcView 3.x Software with which it was acquired and subject to the Crystal Reports License Agreement available on the media. 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. MapObjects—Java Edition contains Java Archive files, which indicate they are authentic Esri-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 MapObjects—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 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 Tapestry Segmentation system. E300 . Page 2 of 5 02/27/2012 22. (a) ArcGIS Engine Runtime licenses shall not be used for Internet and server development and deployment; (b) an end user must license either ArcGIS Engine Runtime Software or other ArcGIS Desktop Software (ArcView, ArcEditor, or Ardnfo) to obtain the right to run an ArcGIS Engine application on one (1) computer; and (c) the ArcGIS Engine Runtime extensions shall not be used in combination with ArcGIS Desktop Software to run ArcGIS 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.esri.com/legal/, 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 server Software and Data may be installed on multiple computers for use by any named EDN developer. 25. Use of included third -party owned Data shall be subject to the Use of Data Restrictions found at http://www.esri.com/legal/ for the specific Data accessed. The Use of Data Restrictions may be modified by Esri from time to time. If a modification is unacceptable to Licensee, Licensee may cancel a subscription upon written notice to Esri, or discontinue use of the Data or Web Services, as applicable. If Licensee continues to use the Data or Web Services, Licensee will be deemed to have accepted the modification. 26. An ArcSDE Personal Edition geodatabase is restricted to ten (10) gigabytes of Licensee data. 27. ArcGIS Server Web ADF Runtime Software may not be deployed independent of Licensee's ArcGIS Server Enterprise configuration. 28. Use is limited to ten (10) concurrent end users of applications other than ArcGIS Server applications. This restriction includes use of ArcGIS Desktop Software, ArcGIS Engine Software, and third -party applications that connect directly to any ArcGIS Server geodatabase. There are no limitations on the number of connections from web applications. 29. Software can only be used with SQL Server 2005/2008 Express. 30. Use is restricted to a maximum of ten (10) gigabytes of Licensee data. 31. Redundant Software installation(s) for failover operations is allowed but can only be operational 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. Licensee's access to and use of Cloud Bundle, ArcGIS Web Mapping, ArcGIS Online Services, Business Analyst Online, Business Analyst Online API, or Microsoft Bing Maps is conditioned upon Licensee's acceptance of the Esri Web Services and API Terms of Use, the Business Analyst Online Web Subscription Terms and Conditions, the Terms of Use for Bing Maps Services, and any other terms and conditions applicable thereto or to any third -party data being accessed through them, found at http://www.esri.com/legal. 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 the client -side data cache derived from ArcGIS Online Services with other licensed end users or third parties. 36. Licensee's use of Esri Business Analyst (Canadian Edition) Data is subject to the Use of Data Restrictions specific to Esri Business Analyst (Canadian Edition) Data. 37. Data provided with StreetMap USA may be used for mapping, geocoding, and routing purposes but is not licensed for dynamic routing purposes. For instance, StreetMap USA may not be used to alert a user about upcoming maneuvers (such as warning of an upcoming turn) or to calculate an alternate route if a turn is missed. 38. The ArcGIS Server 3D extension included with ArcGIS Server Standard (Workgroup or Enterprise) may only be used for generating globe data cache(s) or publishing a globe document as an ArcGIS Globe Service. No other use of the ArcGIS Server 3D extension Software is permitted with ArcGIS Server Standard. 39. Any editing functionality included with ArcGIS Server is not permitted for use with ArcGIS Server Basic (Workgroup or Enterprise). . 40. Geospatial Enterprise JavaBeans (EJB) provided with ArcGIS Server (Workgroup or Enterprise) is permitted for use only with ArcGIS Server Advanced. 41. Licensee may only use Data from a single state with the Single State version of ArcGIS Data Appliance. This restriction applies to a large-scale (i.e., scale levels below 1:100,000) street map, transportation layer, boundaries and places layer, and one (1)-meter or better resolution imagery included in the USA Collection. This restriction does not apply to the small-scale (i.e., scale levels above 1:100,000) maps provided in the World Collection, which are intended for display at global and regional scales. 42. Licensee has the right to one (1) desktop deployment of the ArcGIS Server Image extension Service Definition Editor for every four (4) cores of ArcGIS Server Image extension that are licensed. 43. Licensee may develop an unlimited number of applications on a single computer and deliver the applications to end users with or without the ArcGIS Engine Runtime Software. E300 Page 3 of 5 02/27/2012 44. For any operating system environment in which Licensee runs instances of the Concurrent Use License management software, Licensee may run up to the same number of passive failover instances of the Concurrent Use License management software in a separate operating system environment for temporary failover support. 45. Data licensed with Esri Business Analyst and Esri Business Analyst Server is restricted for use only in conjunction with the respective Business Analyst extension. If Licensee orders a license for Esri Business Analyst or Business Analyst (Canadian Edition) with a subset of the national dataset (i.e., Region, State, Local), Licensee may use only the licensed subset, not any other portion of the national dataset. 46. Licensee should not follow any route suggestions that appear to be hazardous, unsafe, or illegal. Licensee assumes all risk of using this navigation Software. 47. Licensee may develop and distribute software or web applications that use the Esri File Geodatabase API to Licensee's end users. 48. Licensee may include reports and maps created from the Software or Data in hard -copy or read-only format for presentation packages or marketing studies for subsidiaries and customers. The total content of the Esri reports and maps must be less than twenty percent (20%) of Licensee's total content of the presentation package or marketing study. Full, complete, stand-alone reports or maps created from the Software or Data and not part of a presentation package or marketing study cannot be resold, sublicensed, or otherwise transferred without prior written permission of Esri. Licensee's third -party customer may only receive reports and maps generated by Licensee and may only use the maps and reports received from Licensee for internal purposes. In no case shall Licensee redistribute the Data in digital formats. 49. A user quantity restriction applies. This authorizes installation and use of a sufficient quantity of instances of ArcGIS Server Enterprise Standard solely for the purposes of integrated communication between Esri ArcGIS Server Map Services and IBM Cognos data packages and is subject to the per user restriction. 50. Reserved 51. Esri Business Analyst Server Developer and Data may only be installed on one.(1) server per license solely for the purposes of research, development, testing, and demonstration of a prototype application. 52. Source code is the intellectual property of Esri. Licensee shall treat any source code file identified as "Software" in a README file or at httn://www.esri.com/legal/ as a trade secret for Licensee's own internal use only and not for further redistribution or access by unlicensed third parties. Licensee shall not modify the Software, Documentation, Data, or source code to incorporate, embed, link, or otherwise include any code, libraries, or data licensed or distributed under an open source licensing or distribution models similar to Free Software Foundation's GNU General Public License (GPL) or GPL-compliant licenses, including, without limitation, the Artistic License (e.g., Perl), the Mozilla Public License, the Netscape Public License, and the Sun Community or Industry Standards License, that could require a user to make its proprietary source code available to a requesting third party. 53. This authorizes installation and use of a sufficient quantity of instances of ArcGIS Server Enterprise Standard solely for the purposes of integrated communication between Esri ArcGIS Server Map Services and IBM Cognos data packages. 54. ArcGIS Mobile is licensed for use with ArcGIS Server Advanced (Enterprise or Workgroup) and ArcGIS Desktop (ArcInfo, ArcEditor, ArcView, and ArcG1S Engine applications). 55. Licensee may develop software or web applications that use the Business Analyst Online API to access, query, create, display, and redistribute Reports and resulting static, electronic maps to end user(s) of Licensee's software or web applications. End user(s) of Licensee's software or web applications may use the Reports and maps for internal purposes only and not for further redistribution. "Report" means any formatted output created by the Business Analyst Online API, which includes PDF, CSV, Excel, HTML, and XML formats. Licensee shall not redistribute any Data in vector formats. 56. For Reports or maps displayed or posted to an external website, or Reports or maps created for Licensee's end user(s), Licensee shall affix an attribution notice to Licensee's online and/or hard -copy output that acknowledges Esri's and its third -party data supplier's intellectual property. These notices are found in the PDF or export image format of each individual Report or image, or as follows: "Source [Esri, Supplier]" or Copyright © [year(s)] [Esri, Supplier]. All rights reserved." 57. Licensee may only display or post any combination of 100 Business Analyst Online or Community Analyst Reports and maps on its external websites. 58. Licensee shall order a separate Business Analyst Online or Community Analyst subscription for each person who uses Business Analyst Online or Community Analyst and shall provide output from the Business Analyst Online or Community Analyst subscription only to the e-mail of the individual subscriber. Licensee shall not unbundle or use independently of Licensee's Subscription any software components used to access the Deliverables, including, but not limited to, Business Analyst Online API or Community Analyst API. 59. Licensee may develop an unlimited number of applications on a single computer and deliver the applications to end users with or without the ArcGIS Runtime Software up to the number of deployment licenses that have been purchased. 60. (a) ArcGIS Runtime licenses shall not be used for Internet and server development and deployment; (b) an end user must purchase a software application that includes an ArcGIS Runtime license to obtain the right to run an ArcGIS Runtime application on one (1) computer. A single user may have multiple ArcGIS Runtime licensed applications installed on one (1) computer that utilize a single ArcGIS Runtime. E300 Page 4 of 5 02/27/2012 • Qesrr ENTERPRISE LICENSE TERMS AND CONDITIONS Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 ARTICLE 1—DEFINITIONS All definitions in other parts of the ELA will have the same meaning in this Enterprise License Terms and Conditions. In addition, the following definitions apply to the ELA: • "Deploy," "Deployment," or "Deployed" means to redistribute, or the redistribution of, the Enterprise License Software (and its related lcycodes/registration files), or its having been redistributed, by City, during the term of this ELA for installation and use by Licensee. ■ "ELA Fee" means the fee set forth in Appendix B, ELA Fee Schedule. • "ELA Maintenance" means Tier 2 Support, updates, and patches provided by Esri for Enterprise License Software and Rolled -In Software. ■ "Enterprise License Software" means the Software (which includes Data, Web Services, and Documentation provided with the particular item as separately licensed) identified in Table A-1 and Table A-2 of Appendix A, Software and Deployment Schedule. Enterprise License Software does not include unit -priced item(s) or Esri technology that may be embedded in third -party products purchased by Licensee. • "Incident" means a failure of the Software to operate acceding to the Documentation where such failure substantially impacts operational or functional performance. • "License Agreement" means Esri contract 2012MLA2273, referenced on the signature page of this ELA. ■ "Licensee" means City of Fort Collins. For avoidance of doubt, the definition of Licensee will not include consultants or contractors. • "Rolled -In Software" means Software of the same type as Enterprise License Software that Licensee acquired for use prior to the Effective Date that is current on paid maintenance (as shown in Esri s customer service records) and that receives ELA Maintenance during the term of the ELA. • "Technical Support" means a process to attempt to resolve reported Incidents through error correction, patches, hot fixes, and workarounds; replacement deliveries; or any other type of Software, Data, or Documentation corrections or modifications specified in the most current applicable Esri US Software Maintenance Program. ■ "Tier 1 Help Desk" means City point of contact from which all Tier 1 Support will be given to Licensee. ■ "Tier 1 Support" means the Technical Support provided by the Tier 1 Help Desk as the.primary contact to Licensee in its attempted resolution of reported Incidents. ■ "Tier 2 Support" means the Technical Support provided by Esri to the Tier 1 Help Desk when the Incident cannot be resolved through Tier 1 Support. ARTICLE 2—GRANT OF LICENSE 2.1 Grant of License. Licensee's use of the Enterprise License Software is subject to the License Agreement and any additional terms set forth in this Article 2 and in Article 3 below. Rolled -In Software will be licensed in accordance with the License Agreement. 2.2 Beta License. Beta licenses are not available under this ELA as Enterprise License Software. Beta Software, Beta Data, and Beta Web Services, if requested and provided, will be licensed separately and individually under the terms of the License Agreement (see Beta License in Section 3.2 of the General License Terms and Conditions—E200) only. No other benefits, grants, or rights provided in this ELA shall apply or be provided/granted. 2.3 Consultant Access. Section 3.4, Consultant Access, of the General License Terms and Conditions—E200 in the License Agreement is modified to add the following restriction: Access to and use of any Enterprise license Software is restricted to use by consultants and contractors for the sole benefit of Licensee while (i) working on -site at Licensee's facilities; (it) remotely accessing or using Enterprise License Software from Licensee's on -site computers or machines; or (iii) remotely accessing or using Enterprise License Software from a third party's computers or machines under contract to Licensee. Licensee shall require consultant or contractor to discontinue access to and use of Enterprise License Software upon completion of work for Licensee. E512G Page I of 11 01/19/2012 61. Oracle is a third -party beneficiary of Esri's rights under the Esri License Agreement with respect to the Software but is not a party hereto and assumes no obligations hereunder. 62. Esri and its Licensors reserve the right to conduct an audit of Licensee's use of the Software. Licensee will provide reasonable assistance and access to information regarding Licensee's use of the Software. Audit results may be reported to Esri's Licensors. Fees for over -deployment or excess usage are payable within thirty (30) days of the invoice date. 63. Licensee may not publish the results of benchmark tests run on the Software without the prior written permission of Esri and its Licensors. E300 Page 5 of 5 02/27/2012 • ` � . esri® TRAINING TERMS AND CONDITIONS Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 This Training Agreement ("Agreement") is between you (hereinafter "Client") and Environmental Systems Research Institute, Inc. ("Esri"). Client acknowledges that Client has read and understood this Agreement and agrees to be bound by the terms and conditions hereof. RECITALS Client wishes to arrange for certain training in the use of GIS software. Esri is willing to conduct training courses and provide related services regarding the use of GIS software pursuant to the terms and conditions contained herein. The parties therefore agree as follows: ARTICLE 1—TRAINING DESCRIPTION Esri offers a set of instructor -led training and client coaching services related to tl- use of its proprietary GIS software. Instructor -led training events occur at a client's site, at an Esri Learning Center, or via the web in a cloud environment. The Esri software training courses offered, their location, the dates during which the courses are to be conducted, the number of participants, the prices to be paid, and registration requirements are set forth in the Esri Training catalog located on Esri's Training website (http://training.esri.com). All courses are conducted in substantial conformity with course descriptions outlined on the Esri Training website. Esri reserves the right to modify course content when necessary due to software technical capabilities or limitations. Client coaching services may be provided immediately before or immediately following an Esri training course to familiarize the Student with the software or to review and practice course concepts with an instructor's guidance. ARTICLE 2—ESRI'S RESPONSIBILITIES Esri will provide an instructor qualified to conduct the course(s) as well as all necessary training materials sufficient for the number of registered participants (hereinafter "Student(s)") on the scheduled dates. Esri will provide each Student with a course manual, where applicable. Esri will confirm Leaming Center training event scheduled dates approximately ten (10) business days prior to the training event start date. Esri will confirm Client Site scheduled dates upon receipt of the completed Client Site Training Request Form and intended payment method. ARTICLE 3—CLIENT'S RESPONSIBILITIES Client must ensure the protection of Esri's copyrights. Client shall neither copy or distribute nor permit a third party to copy or distribute any of Esri's training material(s). Client is not authorized to resell seat(s) to an Esri training event, unless explicitly authorized in writing by Esri. Client must ensure that all Students have received confirmation from Esri to participate in an Esri training event. Unregistered Students are not permitted to view or participate in an Online Classroom training event. Esri reserves the right to disconnect any Students who permit access to unregistered Students. ■ Client must confirm that all registered Students meet the minimum prerequisites for the applicable training event set forth on Esri's Training website. ■ Client must submit registrations with a confirmed payment commitment at least seven (7) business days before the training event start date. If Client submits a registration without a confirmed payment, Esri will not confirm the seat reservation. The reservation will be added to the waiting list pending payment confirmation and subject to availability. ■ US government export control laws and regulations prohibit US persons from engaging in transactions with certain denied persons found on various US Government Denied Persons lists (e.g., US Department of the Treasury's Specially Designated Nationals List, US Commerce Department's Denied Persons/Entity List, etc.). To meet these export requirements, Client must submit to the Esri Training Event Assistant a list of the names of Students that are to attend any training event. Client must submit the list of Student names to Esri at least three (3) business days before the training E207CW Page] of5 07/11/2011 event start date. Any Student that is found on any of the various US Government Denied Persons lists will not be permitted to attend training. • Client is responsible for all Student travel arrangements. Esri assumes no responsibility for losses from nonrefundable travel arrangements resulting from denial of a Student's participation due to US government export regulation requirements, course scheduling changes, or cancellations. • Client must provide written notice to Esri s Customer Service department at service(a`,esri.com of any cancellation, rescheduling, or Student substitution requirements and receive confirmation of these change(s) prior to the training event start date. • Client must complete and submit an Esri Client Site Training Request Form as well as ensure that it adheres to the course, facility, equipment, and Internet bandwidth and connectivity requirements for Esri Training as found at http://training.esri.com/ ag tewaY/index.cfm?fa=training0ptions. atg eway. • Students may not use audio and/or video recording equipment within the classroom without prior written approval from Esri. Esri reserves the right to record a classroom training event for future rebroadcast. • If the Esri Mobile Lab equipment is utilized at Clients domestic site, then the following terms will apply: — Upon receipt, Client must immediately report any damage to the Mobile Lab equipment to the Training Event Assistant. — Client must keep the Mobile Lab equipment in a secure, locked area bet"een training event sessions. — Client must ensure that only registered Students use the Mobile Lab equipment. — Client is responsible for any and all loss of damage to, or theft of the Mobile Lab equipment while in Client's possession. — Client warrants that it maintains sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. — The Esri instructor will check all Mobile Lab equipment following the completion of training. Any damage to the Mobile Lab equipment due to Student use, excluding normal wear and tear, will be brought to the attention of Client by written notice. Client hereby agrees to be financially responsible for any repair or replacement of equipment resulting from such damage. — Client shall make the Mobile Lab equipment available for freight pickup immediately on conclusion of the Esri course(s). ARTICLE 4—INSURANCE AND INDEMNIFICATION 4.1 Insurance. Esri carries, at a minimum, the following coverage: a. Comprehensive general liability or commercial general liability with minimum coverage of one million dollars ($1,000,000.00) combined single limit per occurrence for bodily injury, including death, and property damage liability, to include the following: 1. Premises and operations 2. Blanket contractual liability 3. Broad form property damage 4. Independent contractors 5. Personal injury, with employee exclusion deleted 6. Completed operations b. Workers' compensation insurance, with waiver of subrogation, in an amount that complies with statutory limits. 4.2 Indemnification. Esri will indemnify and hold harmless Client and each of its directors and officers (collectively the "Indemnified Parties") from and against any and all damages, losses, liabilities, claims, judgments, and settlements, including all reasonable costs, expenses, and attorneys fees, arising out of any action or claim for bodily injury, death, or property damage brought against any of the Indemnified Parties to the extent arising from any negligent act or omission or willful misconduct by Esri or its directors, officers, employees, or agents while engaged in or as a result of the training or coaching services provided by Esri pursuant to this Agreement while on Client's site. E207CW Page 2 of 5 07/11/2011 ARTICLE 5—UNIQUE CLIENT COACHING PRIVACY TERMS In the event Client coaching services are to be ordered, the following terms shall apply: Client shall not provide to Esri or disclose to the instructor any personally identified information ("I'll") (e.g., GLBA, HIPAA, CII from the US Department of Homeland Security), classified, and so forth, data for use in the coaching session. Notwithstanding anything in this Agreement to the contrary, Esri retains the right to refuse acceptance of any nonpublic personal information ("NPI") or Customer Information regardless of the form of disclosure. Esri will only accept receipt of information from Client that comports with the exceptions set forth in Subsections 4(B) and 4(C)(ii) of Section 509 of the Gramm -Leach -Bliley Act (P.L. 106-102) (15 U.S.C. Section 6809) and implementing regulations thereof. ARTICLE 6—SOFTWARE LICENSES The terms of the Esri license agreement are applicable to all Students and cover all of Esri's software, data, and documentation licensed for use in any training course to be conducted. Esri may issue temporary software licenses for Client Site Training where there are an insufficient number of software licenses available at the Client's training facility. Upon conclusion of the training course or event, the Client must uninstall the temporary software licenses and return to Esri any media provided. ARTICLE 7—CANCELLATION AND RESCHEDULING POLICY 7.1 Individual Student Seats When a Student's place in a training event is filled by another person from the same organization, a Student substitution is allowed at no cost provided Esri's Customer Service department is notified three (3) business days in advance of the training event start date. Should a Student substitution occur without three (3) business days' notification, a transfer fee may be assessed. A Student may transfer from one (1) scheduled Esri Learning Center training event to another one (1) time at no additional charge provided Esri's Customer Service department is notified three (3) business days in advance of the training event start date. Subsequent transfers or transfers that occur without three (3) business days' notification may incur a transfer fee. Students may cancel their enrollment in a training event provided Esri's Customer Service department is notified three (3) business days in advance. If three (3) business days' notification is not provided, Students may be charged the full class fee. 7.2 Client Site/Private Class/Coaching Services (Training Event) When a Student's place in a training event is filled by another person from the same organization, a Student substitution is allowed at no cost provided Esri's Customer Service department is notified three (3) business days in advance of the training event start date. Should a Student substitution occur without notification three (3) business days in advance, a transfer fee may be assessed. A training event may be rescheduled by the client, provided Esri` s Customer Service department is notified three (3) business days in advance of the training event start date. If appropriate notice of reschedule is provided, Client is responsible for Esri's reasonable travel expenses and shipping costs incurred. A training event may be canceled by the client provided Esri's Customer Service department is notified three (3) business days in advance of the training event start date. If appropriate notice of cancellation is provided, Client is responsible for any reasonable travel expenses and shipping costs. If a training event is canceled without appropriate notice, client is responsible for the full training event fee. 7.3 If cancellation of a training event is necessary due to Force Majeure as described in Article 1 I below, the affected parry is released in full from the three (3)-business day notification. The affected parry will either reschedule the training or cancel the order without that affected party incurring any liability. 7.4 If Esri is unable to conduct the training on the scheduled date, Esri will notify Client at least three (3) business days before the scheduled date. E207CW Page 3 of 5 07/1 1/2011 ARTICLE 8—PAYMENT Accepted payment methods are found at http://training.esri.com/gateway/index.cfm?fa=catalogpaymentdetaits. If payment is made in the form of a purchase order, Esri shall invoice Client upon completion of each training course or immediately upon receipt of purchase order, as mutually agreed upon with the Client. Client shall make payment no later than thirty (30) days after receipt of invoice. If Client is invoiced and pays that invoice prior to the scheduled training event, then Client has one (1) calendar year (twelve [12] consecutive months) from the date of the invoice to consume the training days. For a multiyear order, the training days must be consumed by the end date specified on the Esri quotation Thereafter, all prepaid fees are forfeited. ARTICLE 9—CONFIDENTIAL INFORMATION Except as provided in Article 5, Unique Client Coaching Privacy Terms, Esri or Client may disclose to the other party certain confidential information under this Agreement. The disclosing party shall identify the information as confidential information at the time of disclosure. Each party shall use the confidential information described above only for exchanging information needed to provide the training contemplated by this Agreement. Within fourteen (14) days of completion of the training, each party shall return or destroy and provide written notification of destruction of the confidential information of the other party. ARTICLE 10—RESERVATION OF OWNERSHIP AND GRANT OF LICENSE Except as specifically granted in this Agreement, Esri and/or its licensors own and retain all right, title, and interest in software, data, documentation, and training materials. ARTICLE 11—FORCE MAJEURE If the performance of any obligation under this Agreement is prevented, restricted, or interfered with by reason of fire, flood, earthquake, explosion, or other casualty or accident; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, or power; war, threat of or actual terrorist act, cyberattack, or other violence; any law, order, proclamation, regulation, ordinance, demand, or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, will be provided a temporary extension for a period of time as may be reasonably necessary to allow for such delay, prevention, interference, or restriction ARTICLE 12—WARRANTY Esri will provide training in a manner consistent with the technical and professional standards of the industry. 12.1 Disclaimer of Warranties. WITH THE EXCEPTION OF THE LIMITED WARRANTY SET FORTH IN THIS ARTICLE, ESRI DISCLAIMS, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, AND NONINFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE DELIVERABLES ARE ERROR FREE. ARTICLE 13—LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY EXCEPT FOR INDEMNITY ASSOCIATED WITH CLIENT SITE TRAINING, IN NO EVENT SHALL ESRI BE LIABLE TO CLIENT FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR TRAINING; LOST PROFITS; LOST SALES; BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS COMMITMENTS; LOSS OF ANY GOODWILL; OR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY, EVEN IF ESRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID BY THE CLIENT FOR THE PORTION OF THE TRAINING UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. E207CW Page 4 of 5 07/11/2011 ARTICLE 14—EXPORT CONTROL REGULATIONS Esri technology is subject to US export control laws and regulations. Esri software, data, documentation, training materials, and any underlying information or technology may not be exported, reexported, or transferred in whole or in part to (i) any US embargoed or sanctioned country (including to a national or resident of a US embargoed or sanctioned country, currently including Cuba, Iran, North Korea, Sudan, and Syria); (it) any person on the US Department of the Treasury's list of Specially Designated Nationals; (iii) any person or entity on the US Commerce Department's Denied Persons List, Entity List, or Unverified List; or (iv) any person or entity where such export or reexport violates any US export control law or regulation. ARTICLE 15—TAXES Training provided is quoted exclusive of all state, local, value-added, or other taxes; customs; or duties or other charges (other than income taxes payable by Esri). In the event such taxes or charges become applicable to Esris training or deliverables, Client shall pay any such applicable tax upon receipt of written notice that such taxes or charges are due. ARTICLE 16—UCC INAPPLICABILITY Training provided under this Agreement will not be governed by the Uniform Commercial Code (UCC) and will not be deemed "goods" within the definition of the UCC. ARTICLE 17—GOVERNING LAW This Agreement is governed by and construed in accordance with the laws of the state in which training is being held or, in the case of training provided over the Internet, the laws of the State of Colorado, without reference to its conflict of laws principles. ARTICLE 18—ENTIRE AGREEMENT This Agreement constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous agreements, understandings, and arrangements (including any attached purchase order terms and conditions) between the parties relating to such subject matter. Client hereby acknowledges and represents that he/she has read and understands this Agreement and has the authority to bind his/her organization to these terms and conditions. E207CW Page 5 of 5 07/11/2011 ARTICLE 3--SCOPE OF USE There are additional Permitted Uses, Uses Not Permitted, and Restrictions for City and Licensee incorporated into this ELA. The Permitted Uses and Uses Not Permitted sections of the General License Terms and Conditions portion of the License Agreement are modified to include the additional term in Sections 3.1 and 3.2 below: 3.1 Additional Permitted Uses. The following additional Permitted Uses are hereby granted to City for the Enterprise License Software: For the term of the ELA, City may copy and Deploy the Enterprise License Software to Licensees up to the quantities of licenses granted in Appendix A. No other Licensee has a right to copy (except as permitted in the License Agreement) or Deploy the Enterprise License Software. 3.2 Uses Not Permitted. In addition to the restrictions set forth in the License Agreement, the following Uses Not Permitted apply to the Enterprise License Software: a. City shall not transfer, redistribute, or Deploy the Enterprise License Software outside the United States or its territories or possessions without the prior written permission of Esri and agreement on additional fees, if any. b. Licensee shall not use the Enterprise License Software outside the United States or its territories or possessions without the prior written permission of Esri and agreement on additional fees, if any. Any such export will be subject to US Export Control Regulation requirements of the License Agreement. c. Licensee shall not transfer, redistribute, or assign Enterprise License Software to any third party without prior Esri written permission. ARTICLE 4—MAINTENANCE 4.1 ELA Maintenance. ELA Maintenance is included in the ELA Fee. Rolled -In Software and Enterprise License Software will receive ELA Maintenance, provided that standard maintenance is available for each item. ELA Maintenance includes benefits specified in the most current applicable Esri US Software Maintenance Program document (found at www.esri.com/legal) as modified by this Section 4.1. a. Tier 1 Support Provided by City (1) Tier 1 Help Desk will provide Tier 1 Support to all Licensees. (2) The Tier I Help Desk will use analysts fully trained in the Software they are supporting. (3) At a minimum, Tier 1 Support will include those activities that assist the user in resolving how-to and operational questions as well as questions on installation and troubleshooting procedures. (4) Tier 1 Support analysts will be the initial points of contact for all questions and Incidents. Tier 1 Support analysts shall obtain a full description of each reported Incident and the system configuration from the Licensee. This may include obtaining any customizations, code samples, or data involved in the Incident. The analyst may also use any other information and databases that may be developed to satisfactorily resolve Incidents. (5) If the Tier I Help Desk cannot resolve the Incident, an authorized Tier 1 Help Desk individual may contact Esri for Tier 2 Support. The Tier I Help Desk shall provide support in such a way as to minimize repeat calls and make solutions to problems available to Licensee. (6) City may assign up to the quantity of named Tier I Help Desk individuals listed in Appendix B. These individuals will be identified in Appendix E and are the only individuals (callers) authorized to contact Esri directly for Tier 2 Support. b. Tier 2 Support Provided by Esri (1) Esri shall log the calls received from the Tier 1 Help Desk individuals. (2) Esri shall review all information collected by and received from Tier 1 Help Desk individuals including preliminary documented troubleshooting provided by Tier 1 Help Desk when Tier 2 Support is required. E512G Page 2 of 11 01/19/2012 (3) Esri may request that Tier I Help Desk individuals provide verification of information, additional information, or answers to additional questions to supplement any preliminary information gathering or troubleshooting performed by Tier I Help Desk (4) Esri shall attempt to resolve the Incidents submitted by Tier 1 Help Desk by assisting the Tier 1 Help Desk individuals and not the Licensees. (5) When the Incident is resolved, Esri shall communicate the information to the Tier 1 Help Desk individuals, and the Tier 1 Help Desk shall disseminate the resolution to the Licensee. (6) Esri may, at Esri's sole discretion, make patches, hot fixes, or updates available for downloading from Esri's website or, if requested, deliver them on media. ARTICLE 5—ORDERING, ADMINISTRATIVE PROCEDURES, DELIVERY, AND DEPLOYMENT REPORT 5.1 Purchase Orders, Delivery, and Deployment a. City shall issue a purchase order upon execution of the ELA and annually thereafter in accordance with the fee schedule in Appendix B. These fees will be due and payable within thirty (30) days of the anniversary date of the ELA, with the initial payment due within thirty (30) days of execution of the ELA. b. Upon receipt of the initial purchase order from City, Esri shall authorize City to download Enterprise License Software listed in Appendix A. Delivery of updates/new versions of Enterprise License Software will be made in the same manner. If requested by City, Esri will deliver a limited number of sets of backup media as provided in Appendix B to the ship -to address identified in Appendix D, ELA Points of Contact, FOB destination with shipping charges prepaid. City may purchase additional backup media sets at the prices in effect at the time of purchase. Delivery or receipt of tangible media could cause prior and future license fees to be subject to taxes. City acknowledges that Esri has a right to invoice, and City agrees to pay any such sales or use tax associated with receipt of tangible media. c. Esri shall provide registration/authorization numbers or access codes, as applicable, to activate the nondestructive copy protection program that enables the Enterprise License Software to operate or allow access. d. City shall track the Deployment status of Enterprise License Software. 5.2 Purchase Order Requirements a. Any purchase orders issued by City will reference, incorporate, and be subject to the terms and conditions of this ELA. No additional, conflicting, or different terms contained in a purchase order or ordering document will be binding. All orders and deliveries pertaining to this ELA will be processed through City's centralized point of contact. b. The following information will be included in each purchase order: (1) Esri customer number and the ship -to address as identified in Appendix D. (2) Purchase order number. (3) Applicable annual payment due, or, for Unit -Priced Items, the quantity, description, price, and name of Licensee. (4) On the face of the purchase order, print the following statement: "Governed by and subject to Enterprise License Agreement No. 2012ELA2273." 5.3 Annual Report of Deployments. At each anniversary date and ninety (90) days prior to the expiration date of this ELA, City shall provide a written report, as set forth in Appendix C, to Esri detailing all Deployments made. The report will be subject to audit by an authorized representative of Esri. 5.4 Esri International User Conference Registration. Esri shall provide Esri International User Conference registrations to City annually during the term of this ELA in the quantities set forth in Appendix B. Third parties may not represent or attend on behalf of City at any Esri International User Conference. ARTICLE 6—POINTS OF CONTACT; NOTICES 6.1 Points of Contact. Each party shall identify points of contact for administrative and technical issues in Appendix D. 6.2 Notices. Except as set forth in Section 6.1, any notice, report, demand, or other communication will be properly given when made in writing in English and sent by courier; registered or certified airmail; or facsimile or other electronic E512G Page of 11 01/19/2012 (3) Esri may request that Tier 1 Help Desk individuals provide verification of information, additional information, or answers to additional questions to supplement any preliminary information gathering or troubleshooting performed by Tier 1 Help Desk (4) Esri shall attempt to resolve the Incidents submitted by Tier I Help Desk by assisting the Tier 1 Help Desk individuals and not the Licensees. (5) When the Incident is resolved, Esri shall communicate the information to the Tier 1 Help Desk individuals, and the Tier 1 Help Desk shall disseminate the resolution to the Licensee. (6) Esri may, at Esri's sole discretion, make patches, hot fixes, or updates available for downloading from Esri's website or, if requested, deliver them on media. ARTICLE 5—ORDERING, ADMINISTRATIVE PROCEDURES, DELIVERY, AND DEPLOYMENT REPORT 5.1 Purchase Orders, Delivery, and Deployment a. City shall issue a purchase order upon execution of the ELA and annually thereafter in accordance with the fee schedule in Appendix B. These fees will be due and payable within thirty (30) days of the anniversary date of the ELA, with the initial payment due within thirty (30) days of execution of the ELA. b. Upon receipt of the initial purchase order from City, Esri shall authorize City to download Enterprise License Software listed in Appendix A. Delivery of updates/new versions of Enterprise License Software will be made in the same manner. If requested by City, Esri will deliver a limited number of sets of backup media as provided in Appendix B to the ship -to address identified in Appendix D, ELA Points of Contact, FOB destination with shipping charges prepaid. City may purchase additional backup media sets at the prices in effect at the time of purchase. Delivery or receipt of tangible media could cause prior and future license fees to be subject to taxes. City acknowledges that Esri has a right to invoice, and City agrees to pay any such sales or use tax associated with receipt of tangible media. c. Esri shall provide registration/authorization numbers or access codes, as applicable, to actuate the nondestructive copy protection program that enables the Enterprise License Software to operate or allow access. d. City shall track the Deployment status of Enterprise License Software. 5.2 Purchase Order Requirements a. Any purchase orders issued by City will reference, incorporate, and be subject to the terms and conditions of this ELA. No additional, conflicting, or different terms contained in a purchase order or ordering document will be binding. All orders and deliveries pertaining to this ELA will be processed through City's centralized point of contact. b. The following information will be included in each purchase order: (1) Esri customer number and the ship -to address as identified in Appendix D. (2) Purchase order number. (3) Applicable annual payment due, or, for Unit -Priced Items, the quantity, description, price, and name of Licensee. (4) On the face of the purchase order, print the following statement: "Governed by and subject to Enterprise License Agreement No. 2012ELA2273." 5.3 Annual Report of Deployments. At each anniversary date and ninety (90) days prior to the expiration date of this ELA, City shall provide a written report, as set forth in Appendix C, to Esri detailing all Deployments made. The report will be subject to audit by an authorized representative of Esri. 5.4 Esri International User Conference Registration. Esri shall provide Esri International User Conference registrations to City annually during the term of this ELA in the quantities set forth in Appendix B. Third parties may not represent or attend on behalf of City at any Esri International User Conference. ARTICLE 6—POINTS OF CONTACT; NOTICES 6.1 Points of Contact. Each party shall identify points of contact for administrative and technical issues in Appendix D. 6.2 Notices. Except as set forth in Section 6.1, any notice, report, demand, or othereommunication will be properly given when made in writing in English and sent by courier; registered or certified airmail; or facsimile or other electronic E512G Page 3 of 11 01/19/2012 transmission, and confirmed by courier or by registered or certified airmail, properly addressed to the appropriate party at the address set forth above, until changed by notice in writing by either parry hereto. If sent by courier or airmail, notice will be effective seven (7) days from the date of deposit with the courier service or post office. If sent by electronic transmission, notice will be effective upon receipt, provided confirmation is given as specified herein. Notices will be given at the following addresses: To: Esri To: City 380 New York Street as listed in Appendix D Redlands, CA 92373-8100 Arm.: Manager, Contracts and Legal Services ARTICLE 7—TERM, TERMINATION, AND EXPIRATION 7.1 Term. The term of the ELA will be for the period listed in Apperdix B, commencing on the Effective Date unless this ELA is terminated earlier as provided herein. 7.2 Termination for a Material Breach. Esri may terminate this ELA for a material breachby Licensee. Licensee will be given a period of thirty (30) days from date of written notice to cure any material breach Upon termination of this ELA by Esri for a material breach by Licensee, all licenses Deployed will also terminate, and the full amount of unpaid ELA Fees will be due and payable by County within thirty (30) days from the date of termination. Licensees shall uninstall, remove, and destroy all Enterprise License Software; training materials; and any whole or partial copies, modifications, or merged portions in any form. County shall deliver evidence of such destruction to Esri (e.g., certification letter). Licensee may continue to use Rolled -In Software, provided Licensee complies with the terms and conditions of the License Agreement. Further, Esri agrees that Licensee is not required to pay a maintenance reinstatement fee for lapsed maintenance for Rolled -In Software if Licensee orders maintenance at time of ELA termination. Other items that may be included in this ELA such as EAP, Virtual Campus annual user license, access codes, Virtual Campus dollar credits, and Esri International User Conference registrations, will also terminate if this ELA is terminated. 7.3 License Term and Use upon Expiration of ELA Term. Upon full payment of the ELA Fee and expiration of this ELA, the License Agreement will survive, and Licensee may continue to use the Deployed Enterprise License Software and Rolled -In Software in accordance with the terms and conditions set forth in the License Agreement. Licensee shall notify Esri of the quantity and type of licenses for which Licensee elects to purchase standard maintenance. If maintenance is not ordered for Rolled -In Software or Enterprise License Software upon expiration of the ELA, it lapses. If, at a later date, Licensee decides to reinstate maintenance, Licensee must pay maintenance reinstatement fees from the date of ELA expiration (e.g., back maintenance fees). County shall not Deploy additional copies of the Enterprise License Software beyond the quantities in use upon termination or as of the date of expiration. ARTICLE 8--CONFIDENTIALITY 8.1 Esri Confidential Information. Certain terms and conditions of this ELA are confidential and proprietary information of Esri. Except as provided herein, City shall not publish or disclose the ELA (or contents) to any third party without Esri's prior written consent. Disclosure may be made only to those City employees and advisers of City (e.g., outside counsel or accountants) who have a need to know to perform their duties and have an obligation of confidentiality. City may only disclose the License Agreement and restrictions contained in the ELA to a contractor or consultant who has a need to know such information to perform work on behalf of City. No other portions of the ELA may be disclosed to a contractor or consultant. To the extent that any such disclosures may be required by law (such as an open/public records request), City shall inform Esri of the requested disclosure, with a reasonable description of the requested disclosure and identification of the requestor, in sufficient time for Esri to assert any objection Esri may have to such disclosure with the appropriate administrative or judicial body. ARTICLE 9—RELATIONSHIP OF THE PARTIES The ELA does not constitute a partnership, joint venture, or agency between Esri and City. Neither Esri nor City will hold itself out as such, nor shall Esri or City be bound or become liable because of any representation, action, or omission of the other. E512G Page of 11 01/19/2012 ARTICLE 10—FORCE MAJEURE If the performance of any obligation under this ELA is prevented, restricted, or interfered with by reason of fire, flood, earthquake, explosion, or other casualty or accident; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, or power; war, threat of or actual terrorist act, cyberattack, or other violence; any law, order, proclarnation, regulation, ordinance, demand, or requirement of any government agency; or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, will be provided a temporary extension for a period of time as may be reasonably necessary to allow for such delay, prevention, interference, or restriction ARTICLE 11—GIS STANDARD City shall officially name Esri as its GIS standard and act as a reference for other Esri customers and potential customers as long as the ELA remains in effect. This ELA will not be construed or interpreted as an exclusive dealings agreement, and City reserves the right to purchase from third parties any of their requirements for GIS software, or related services. City agrees that Esri may publicize the existence of the ELA ARTICLE 12—ADMINISTRATIVE REQUIREMENTS 12.1 Esri Partner Original Equipment Manufacturer (OEM) Bundled or Embedded Items/Services. Certain Esri partners are authorized to either embed limited portions of Esri technology or bundle Esri products or services with the partner's application or service under Esri's OEM or Solution OEM programs. Partner pricing and product bundling is independent of this ELA, and each partner markets under its own business model and pricing. Licensee shall not be entitled to or seek any discount from the OEM business partner or Esri, directly or indirectly, as a result of or based upon the availability of such Software, Data, Web Services, or Documentation as Enterprise License Software under this ELA. Licensee shall not be entitled to or seek to decouple Esri's technology or products/services from the partners bundle or solution. In addition, such Software, Data, Web Services, Documentation, or any component thereof included in the OEM software program or product will be licensed through the license agreement provided by the OEM business partner and not through this ELA. 12.2 Enterprise License Software —Limited Quantity or Unit -Priced Items. Esri reserves the right to exclude new Software products from unlimited Deployment. New Software products may contain or be developed with (i) newly acquired technology obtained through a significant investment or (ii) third -party intellectual property that requires a unit -based royalty fee or prohibits Deployment under a site or enterprise license. Such items can be made available to City on a limited quantity basis or as unit -priced items. 12.3 Obsolescence. During the term of this Agreement, some of the items listed in Appendix A may become obsolete or will no longer be commercially offered or may no longer be available for Deployment. Licensee may continue to use Enterprise License Software that has been Deployed, but support and upgrades for older items may not be available. ELA Maintenance and maintenance and availability of Enterprise License Software identified in Appendix A will be subject to each item's Product Life Cycle Support Status, which can be found at http•//resources.arc6s.com/content/product-life-cycles by selecting the product type and clicking the Product Life Cycle link for specific product plans. Esri's Product Life Cycle Support Policy, available athttp://help arcgas com/en/shared/product-life-cycle/ProductLifeCycle.pdf, covers the support phases and overall support plans. ARTICLE 13—GENERAL PROVISIONS 13.1 The General Provisions and Limitations of Liability of the License Agreement will apply to the entire ELA. If there is a conflict among any of the other terms and conditions in the various documents, the order of descending precedence will be as follows: (1) E119 Signature Page, (2) E512 ELA Terms and Conditions, (3) E300 Scope of Use, and (4) E200 General License Terms and Conditions. Except as otherwise expressly provided herein, any amendment or Addendum to this ELA must be in writing and signed by an authorized representative of each party. E512G Page 5 of 11 01/19/2012 ARTICLE 10—FORCE MAJEURE If the performance of any obligation under this ELA is prevented, restricted, or irterfered with by reason of fire, flood, earthquake, explosion, or other casualty or accident; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, or power; war, threat of or actual terrorist act, cyberattack, or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any government agency; or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, will be provided a temporary extension for a period of time as may be reasonably necessary to allow for such delay, prevention, interference, or restriction ARTICLE 11--GIS STANDARD City shall officially name Esri as its GIS standard and act as a reference for other Esri customers and potential customers as long as the ELA remains in effect. This ELA will not be construed or interpreted as an exclusive dealings agreement, and City reserves the right to purchase from third parties any of their requirements for GIS software, or related services. City agrees that Esri may publicize the existence of the ELA. ARTICLE 12—ADMINISTRATIVE REQUIREMENTS 12.1 Esri Partner Original Equipment Manufacturer (OEM) Bundled or Embedded Items/Services. Certain Esri partners are authorized to either en -bed limited portions of Esri technology or bundle Esri products or services with the partner's application or service under Esri's OEM or Solution OEM programs. Partner pricing and product bundling is independent of this ELA, and each partner markets under its own business model and pricing. Licensee shall not be entitled to or seek any discount from the OEM business partner or Esri, directly or indirectly, as a result of or based upon the availability of such Software, Data, Web Services, or Documentation as Enterprise License Software under this ELA. Licensee shall not be entitled to or seek to decouple Esri's technology or products/services from the partner's bundle or solution. In addition, such Software, Data, Web Services, Documentation, or any component thereof included in the OEM software program or product will be licensed through the license agreement provided by the OEM business partner and not through this ELA. 12.2 Enterprise License Software —Limited Quantity or Unit -Priced Items. Esri reserves the right to exclude new Software products from unlimited Deployment. New Software products may contain or be developed with (i) newly acquired technology obtained through a significant investment or (ii) third -party intellectual property that requires a unit -based royalty fee or prohibits Deployment under a site or enterprise license. Such items can be made available to City on a limited quantity basis or as unit -priced items. 12.3 Obsolescence. During the term of this Agreement, some of the items listed in Appendix A may become obsolete or will no longer be commercially offered or may no longer be available for Deployment. Licensee may continue to use Enterprise License Software that has been Deployed, but support and upgrades for older items may not be available. ELA Maintenance and maintenance and availability of Enterprise License Software identified in Appendix A will be subject to each item's Product Life Cycle Support Status, which can be found at http://resources.arcgis.com/content/product-life-cycles by selecting the product type and clicking the Product Life Cycle link for specific product plans. Esri's Product Life Cycle Support Policy, available at http://help.arcgis.com/en/shared/l)roduct-life-cycle/ProductLifeCycle.pdf, covers the support phases and overall support plans. ARTICLE 13—GENERAL PROVISIONS 13.1 The General Provisions and Limitations of Liability of the License Agreement will apply to the entire ELA. If there is a conflict among any of the other terms and conditions in the various documents, the order of descending precedence will be as follows: (1) El 19 Signature Page, (2) E512 ELA Terms and Conditions, (3) E300 Scope of Use, and (4) E200 General License Terms and Conditions. Except as otherwise expressly provided herein, any amendment or Addendum to this ELA must be in writing and signed by an authorized representative of each party. E512G Page 5 of 11 01/19/2012