HomeMy WebLinkAbout2017-05-23; Municipal Water District; Resolution 1571RESOLUTION NO. 1571
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD
MUNICIPAL WATER DISTRICT BOARD (CMWD), AUTHORIZING EXECUTION
OF A MASTER SALES AGREEMENT WITH ITRON, INC. FOR EQUIPMENT,
SOFTWARE AND CONFIGURATION SERVICES FOR AN ADVANCED METERING
INFRASTRUCTURE NETWORK FOR AN AMOUNT NOT TO EXCEED $184,916.
EXHIBIT 1
WHEREAS, the Carlsbad Municipal Water District Board of the City of Carlsbad, California has
determined that it is necessary, desirable and in the public interest to purchase an advanced metering
infrastructure network; and
WHEREAS, on May 10, 1988, the City Council entered into an agreement with ltron, Inc. for
hardware purchase and software license agreement; and
WHEREAS, over the last 29 years, the Carlsbad Municipal Water District and the City of Carlsbad
have entered into a number of agreements for meter services with ltron, Inc.; and
WHEREAS, pursuant to City Municipal Code 3.28.110 Exemptions C (items required to match or
be compatible with other equipment previously purchased by the city) and N (situations where
solicitations of bids or proposals for goods, services, or professional services would be, in the discretion
of the awarding authority, impractical, unavailing, impossible, or not in the best interests of the city),
staff recommends entering into a direct-purchase agreement with ltron, Inc.; and
WHEREAS, staff and ltron, Inc. have negotiated the scope of work and fee not to exceed
$184,916 to provide equipment, software and configuration services for an advanced metering
infrastructure network; and
WHEREAS, funding for said project has previously been appropriated during the fiscal year
2016-17 Operating Budget process.
NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Municipal Water District Board of the City
of Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That the Board finds that solicitations of bids or proposals for goods, services, or
professional services would be impractical, unavailing, impossible, or not in the best interests of the
city under Carlsbad Municipal Code section 3.28.110(N).
MASTER SALES
AGREEMENT ITRON, INC.
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THIS AGREEMENT is made and entered into as of the~tflday of~017, byand
between the CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency o~anized under
the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, ("CMWD"},
and ITRON, INC., a Washington corporation,("Contractor").
RECITALS
A. CMWD requires the professional services of a technology provider for water
utilities that is experienced in supplying equipment and configuration services for ltron's Advanced
Metering Infrastructure Network.
B. Contractor has the necessary experience in providing these professional services.
C. Contractor has submitted a proposal to CMWD and has affirmed its willingness
and ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, CMWD and Contractor agree as follows:
1. SCOPE OF WORK
CMWD retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", Supplement and Statement of Work-for the
fees set forth in the Pricing Summary identified in the Supplement -all of which are incorporated
by this reference in accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment while
exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of one (1) year from the date first above
written. The Executive Manager may amend the Agreement to extend it for four (4) additional one
(1) year periods or parts thereof. Extensions will be based upon a satisfactory review of
Contractor's performance, CMWD needs, and appropriation of funds by the CMWD Board of
Directors. The parties will prepare a written amendment indicating the effective date and length
of the extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for needs and Services to be performed during the initial Agreement term
will not exceed one hundred eighty four thousand nine hundred sixteen dollars ($184,916). No
other compensation for the Services will be allowed except for items covered by subsequent
amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not
exceed thirty seven thousand eight hundred sixteen dollars and one cent ($37,816.01) per
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Agreement year. CMWD reserves the right to withhold a ten percent (10%) retention until CMWD
has accepted the work and/or Services specified in the Statement of Work.
Incremental payments, if applicable, should be made as outlined in the Statement of Work.
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of CMWD. Contractor will
be under control of CMWD only as to the result to be accomplished, but will consult with CMWD
as necessary. The persons used by Contractor to provide services under this Agreement will not
be considered employees of CMWD for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. CMWD will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD will not
be required to pay any workers' compensation insurance or unemployment contributions on
behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify CMWD
and the City of Carlsbad within thirty (30) days for any tax, retirement contribution, social security,
overtime payment, unemployment payment or workers' compensation payment which CMWD
may be required to make on behalf of Contractor or any agent, employee, or subcontractor of
Contractor for work done under this Agreement. At CMWD's election, CMWD may deduct the
indemnification amount from any balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of
CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to
CMWD for the acts and omissions of Contractor's subcontractor and of the persons either directly
or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons
directly employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and CMWD. Contractor will be responsible
for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor
of a subcontractor by the terms of this Agreement applicable to Contractor's work unless
specifically noted to the contrary in the subcontract and approved in writing by CMWD.
8. OTHER CONTRACTORS
CMWD reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless CMWD and the City of Carlsbad, their officers,
officials, employees and volunteers from and against all claims, damages, losses, and expenses
including attorney's fees, arising out of the performance of the work described herein caused by
any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone
directly or indirectly employed by any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense CMWD or the
City of Carlsbad incurs or makes to or on behalf of an injured employee under the their self-
administered workers' compensation is included as a loss, expense or cost for the purposes of
this section, and that this section will survive the expiration or early termination of this Agreement.
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10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or. damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The insurance
carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus
line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating
in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by
the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
10.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below, unless the
Risk Manager or Executive Manager approves a lower amount. These minimum amounts of
coverage will not constitute any limitations or cap on Contractor's indemnification obligations
under this Agreement. CMWD, its officers, agents and employees make no representation that
the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are
adequate to protect Contractor. If Contractor believes that any required insurance coverage is
inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems
adequate, at Contractor's sole expense. The full limits available to the named insured shall also
be available and applicable to CMWD as an additional insured.
1 0.1.1 Commercial General Liability Insurance. $2,000,000 combined single-limit per
occurrence for bodily injury, personal injury and property damage. If the submitted policies contain
aggregate limits, general aggregate limits will apply separately to the work under this Agreement
or the general aggregate will be twice the required per occurrence limit.
1 0.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's
work for CMWD). $1,000,000 combined single-limit per accident for bodily injury and property
damage.
1 0.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation
limits as required by the California Labor Code. Workers' Compensation will not be required if
Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this.
1 0.2. Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
1 0.2.1 CMWD will be named as an additional insured on Commercial General
Liability which shall provide primary coverage to CMWD.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability,
which will be written as claims-made coverage.
1 0.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) days prior written notice, with the
exception of Professional Liability, to CMWD sent by mail pursuant to the Notice provisions of this
Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD.
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10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then CMWD will, after a ten day written notice to Contractor to remedy, have the option
to declare Contractor in breach, or may purchase replacement insurance or pay the premiums
that are due on existing policies in order to maintain the required coverages. Contractor is
responsible for any payments made by CMWD to obtain or maintain insurance and CMWD may
collect these payments from Contractor or deduct the amount paid from any sums due Contractor
under this Agreement.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of CMWD
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement specifically for CMWD is the property of CMWD. In the event this Agreement
is terminated, all such work product produced by Contractor or its agents, employees and
subcontractors pursuant to this Agreement will be delivered at once to CMWD. Contractor will
have the right to make one (1) copy of the work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights in work product documents produced specifically for CMWD
will be vested in CMWD and Contractor relinquishes all claims to the copyrights in favor of CMWD.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written notice
on behalf of CMWD and on behalf of Contractor under this Agreement.
ForCMWD
Name Mario Remillard
Title Meter Services Supervisor
Carlsbad Municipal Water District
Address 5950 El Camino Real
Carlsbad, CA 92008
Phone 760-438-2722 x7153
For Contractor
Name
Title
Jeramy Page
Contract Administration
Address 2111 North Molter Road
Liberty Lake, WA 99019-9469
Phone 509-924-9900 I F: 509-891-3331
E-mail contract.reguest@itron.com
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
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16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements ·of the City of Carlsbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations .
which in any manner affect those employed by Contractor, or in any way affect the performance
of the Services by Contractor. Contractor will at all times observe and comply with these laws,
ordinances, and regulations and will be responsible for the compliance of Contractor's services
with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants that the services required
by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or CMWD will reduce such questions, and
their respective views, to writing. A copy of such documented dispute will be forwarded to both
parties involved along with recommended methods of resolution, which would be of benefit to
both parties. The representative receiving the letter will reply to the letter along with a
recommended method of resolution within ten (1 0) business days -or such other time period as
may be agreed upon by CMWD and Contractor. If CMWD and Contractor are not able to agree
upon a method of resolution within that time period, each party will have the right to commence
any legal proceeding as permitted by law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, CMWD may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If CMWD decides to abandon or indefinitely postpone the work or services
contemplated by this Agreement, CMWD may terminate this Agreement upon written notice to
Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any
documents owned by CMWD and all work in progress (which is produced specifically for CMWD)
to the CMWD address contained in this Agreement. CMWD will make a determination of fact
based upon the work product delivered to CMWD and of the percentage of work that Contractor
has performed which is usable and of worth to CMWD in having the Agreement completed. If
contested by Contractor, CMWD and Contractor, the matter will be referred to dispute resolution
under Section 19.
Either party upon tendering thirty (30) days written notice to the other party may terminate this
Agreement. In this event and upon request of CMWD, Contractor will assemble the work product
and put it in order for proper filing and closing and deliver it to CMWD. Contractor will be paid for
work performed to the termination date; however, the total will not exceed the lump sum fee
payable under this Agreement.
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21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or violation
of this warranty, CMWD will have the right to annul this Agreement without liability, or, in its
discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full
amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any agreement claim submitted to CMWD must
be asserted as part of the agreement process as set forth in this Agreement and not in anticipation
of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is
submitted to CMWD, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.,
the False Claims Act applies to this Agreement and, provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If CMWD seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement for
a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is
grounds for CMWD to terminate this Agreement.
23. JURISDICTION AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon CMWD and
Contractor and their respective successors. Neither this Agreement nor any part of it nor any
monies due or to become due under it may be assigned by Contractor without the prior consent
of CMWD, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along
with the purchase order for this Agreement and its provisions, embody the entire Agreement and
understanding between the parties relating to the subject matter of it. In case of conflict, the terms
of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions
may be amended, modified, waived or discharged except. in a writing signed by both parties.
Ill
Ill
Ill
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Exhibit "A" I
• Conduct CCFN system user training, with specific training sessions defined during Project planning
meeting. (Maximum of 30 hours)
• Complete transition to ITRON Technical Support Services documentation.
• Transition project to ITRON Support Services.
C.2. CUSTOMER Deliverables
The following deliverables will be performed by the CUSTOMER for this project.
• Participate, schedule and facilitate Project kickoff meeting to discuss system overview,
implementation requirements and Project schedule.
• Provide details for CCU and repeater specifications at time of ordering.
• Provide meter and network asset location data per Iron's specifications.
• Schedule bi-weekly Project planning/status meetings.
• Evaluate initial network design for network site viability and RF interference.
• Perform site surveys and complete site survey reports, including confirmation of network installation
locations, to ITRON.
• Install network hardware (CCU and Repeaters) in accordance with ITRON installation instruction
manual and ITRON approved final network design locations.
• Endpoint Installations and data updates to the CIS (Customer Information System).
• Provide a standard system design document based on kickoff meeting input.
• Develop MDI file creation
• Perform and test any integrations to CIS or other systems.
• Attend CCFN training session.
• Support functional testing and lead integration and end-to-end testing.
• Support completion of transition to ITRON Technical Support Services documentation.
• Support Project transition to ITRON Technical Support Services.
C.3. Project Schedule
~he Project schedule is dependent on resource availability after the fully executed agreement is received
by ltron. The Project schedule will be defined during the Project Kick-Off meeting as well as roles and
responsibilities of the entire project team.
Work is anticipated during working hours Monday-Friday. No after hours, weekend, or holiday hours work
is anticipated.
C.4. Assumptions
This section provides the key assumptions for the Proj~ct.
1. CUSTOMER is responsible for data quality and cleansing before.
2. ITRON services will be performed remotely unless otherwise requested by CUSTOMER for end-
user training. Travel costs for any other onsite work may be estimated as requested.
3. CUSTOMER is responsible for the purchase of all software not covered under the ITRON Sales
and Maintenance Agreements. This includes but is not limited to (operating systems, database,
etc ... ).
4. ITRON will support configuration of a single Production environment of ltron Analytics and
Customer Portal.
Page 3 of q
ltro;,
ElectricM!ater!Gas
Information collection, analysis and application
2111 N. Molter Rd.
Liberty Lake, WA 99019
fax: 866-787-6910
VII'NW'.itron.com
Item Category Description
ERT's, Network Infrastructure, and Hardware
1 ERT 1 OOW+, Encoder with Integral Connector & Antenna Connector
2 ERT Accessories 1 OOW Through-the-Lid remote mount antenna Kit
3 Network CCU 100, Internal GPS/WAN Antenna, AC powered, Cellular WAN with direct
mount ERT antenna and hardware
4 Network CCU 100, External GPS/WAN Antenna, AC powered, Cellular WAN with
remote mount ERT antenna and hardware
5 Network Repeater 100, Internal GPS/WAN Antenna, AC powered with direct mount ERT
antenna and hardware
ERT's, Network Infrastructure, and Hardware Total
Professional Services
6 Professional Project management and system engineering services
Services
7 Professional Hosted Fixed Network Implementation and Training
Services
Annual Maintenance
8 Annual
Maintenance
9 Annual
Maintenance
10 Annual
Maintenance
Notes and Assumptions
Professional Services Total
Fixed Network 100 System Total
CCU 100, Internal GPS/WAN Antenna, AC powered, Cellular WAN with direct
mount ERT antenna and hardware
CCU 100, Internal GPS/WAN Antenna, AC powered, Cellular WAN with direct
mount ERT antenna and hardware
Repeater 100, Internal GPS/WAN Antenna, AC powered with direct mount ERT
antenna and hardware
Annual Maintenance Total
Qty
28,817
TBD
4
27
4
27
Exhibit "A"
Budgetary Pricing Summary for
City of Carlsbad, CA
Unit Price
BMR# 9795-16 Ver4 Feb
February 27, 2017
Extended Price Notes
Already Purchased/Installed
$34.00 TBD
$4,650.00 $18,600.00 (1-2)
$5,600.00 $5,600.00
$3,400.00 $91,800.00 (1-2)
$116,000.00
$13,650.00 $13,650.00 (3-4)
$15,600.00 $15,600.00
$31,100.00
$147,100.00
$120.00 $480.00
$120.00 $120.00
$72.00 $1,944.00
$2,544.00
(1) Network configuration is based on location data provided by the utility. Changes to this data may affect collector and repeater quantities and mounting
locations. Please refer to ltron's Propagation Study.
(2) Network configuration above is for the Southeast area of Carlsbad.
(3) Professional Services price is based on a 4 month project duration. ltron has included 40 hours for a Project Manager (remote) for a 4 month project. ltron
will create a formal Scope of Work and confirm the Professional Services quoted; a more detailed discussion of project requirements will be conducted with
the Utility.
Carlsbad is responsible for network installation. Carlsbad is responsible for ERT installation. The Utility will be responsible for any ongoing lease fees for third-
party sites. The actual agreement for placement of the equipment will be between the Utility and the third-party owner.
(4) Carlsbad is responsible for MDI Interface and Network Hardware installation.
(5) Taxes and freight are not included. Prices are in US dollars. Prices are valid for 180 days.
Page 1
Exhibit "A"
Electric I Gas I Water ltron Total AMI
Information collection, analysis and application
City of Carlsbad, CA
2111 N. Moner Rd.
liberty Lake, WA 99019
fax: 866-787-6910
WNN.itron.com
Item Category
ltron Total AMI
Description
Annual Services ltron Total AMI -ltron Network Software
ltron Total AMI Year 1
Notes and Assumptions
(1) llron Total AMI is based on the total number of ERT's.
Quantity
28,817
Price Per Meter/
Per Month
$0.102
Monthly Fee
$2,939.33
$2,939.33
BMR# g7g5-16 Ver4 Feb
February 27, 2017
Notes
(1-3)
Annual Fee
$35,272.01
$35,272.01
ltron Total AMI is ltron's SaaS offering that includes software license, software maintenance, IT Administration, IT infrastructure, and backhaul communication fees
for Fixed Network.
(2) ltron Total AMI SaaS for ltron Fixed Network is configured to support 28,817 ERT's and 400 days storage of 60 minute interval data.
(3) ltron AMI SaaS is offered for a minimum term of 12 months and will be invoiced annually.
On an annual basis, the ltron Cloud Services Team will assess how many endpoints are being managed by the system. If the endpoint count exceeds the contracted
amount by >5%, ltron will provide client revised pricing.
SUPPLEMENT
TO
MASTER SALES AGREEMENT
Exhibit "8"
This Supplement is attached to and made a part of the 2017 Master Sales Agreement between
the CARLSBAD MUNICIPAL WATER DISTRICT ("CMWD") and ITRON, INC. dba IBS
("Contractor").
1. Technology & Services Addenda.
The attached Transaction Summary identifies Technology & Services Addenda that are attached
to and made a part of this Supplement and the Agreement. This Supplement, the Addenda, and
the main body of the Master Sales Agreement taken together constitute the Agreement as a
whole. In the event of a conflict between the main body of this Master Sales Agreement and this
Supplement or an Addendum, this Supplement or the Addendum will control to the extent
necessary to resolve the conflict.
2. Fees, Taxes, and Payment.
2.1 Fees. Fees will be specified in a pricing summary made a part of this Agreement.
ltron reserves the right to modify the pricing summary from time-to-time during the term of this
Agreement upon thirty (30) days' prior written notice to Customer for any new purchase orders.
Changes to the pricing summary will require a written amendment to the Agreement before
becoming effective.
2.2 Taxes. Prices and charges for products and services are exclusive of taxes, levies,
duties and similar governmental assessments ("Taxes"), all of which are the responsibility of
Customer to pay. Customer is responsible for paying all Taxes applicable to transactions. If ltron
has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate
amount shall be invoiced to and paid by Customer, unless Customer provides a valid tax
exemption certificate or direct pay permit authorized by the appropriate taxing authority. ltron is
solely responsible for taxes assessable against ltron based on its income, property and
employees.
2.3 Payment. All purchase orders are subject to credit approval. Payment terms are
net thirty (30) days from the date of invoice. All payments shall be made in US currency. Late
payments shall accrue interest from the due date at the rate of 1.0% of the outstanding balance
per month, or the maximum rate permitted by law until the date paid, and ltron may condition
future renewals and purchase orders on payment terms shorter than thirty (30) days.
3. Termination.
3.1 Termination for Convenience. Customer may terminate this Agreement for
convenience upon thirty (30) days' prior written notice to ltron; an early termination for certain
services may apply. ltron may terminate this Agreement for convenience upon one-hundred
eighty (180) days' prior written notice to Customer.
3.2 Termination for Cause. Other than Customer's nonpayment which shall
constitute a breach of this Agreement if full payment is not received within five (5) days of written
notice, either Party may terminate this Agreement by providing the other Party with written notice
if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors
or becomes subject to bankruptcy or receivership proceedings; (ii) breaches its obligations related
1
Exhibit "8"
to the other Party's confidential information; or (iii) commits a material breach of this Agreement
that remains uncured for thirty (30) days following delivery of written notice of such breach
(including, but not necessarily limited to, a statement of the facts relating to the breach or default,
the provisions of this Agreement that are in breach or default and the action required to cure the
breach or default).
3.3 Surviving Provisions. Any provision of this Agreement that contemplates
performance or observance subsequent to termination or expiration of this Agreement shall
survive termination or expiration and continue in full force and effect for the period so
contemplated.
4. Privacy.
4.1 General. If, in the course of providing any services, ltron has or obtains, to any
extent and for any reason, any access to Customer Data, then the terms and conditions of this
Section 4 will apply.
4.2 Definition of Customer Data. "Customer Data" means any information about
Customer's existing or prospective customers that ltron acquires, develops, or derives under this
Agreement. Customer Data may include, without limitation, any personally identifying information
relating to an existing or prospective customer, or any other information that, either individually or
when combined with other information could be used to derive information specific to a particular
customer or prospective customer, which information is not generally available to the public and
which ltron acquires or derives in carrying out its obligations under this Agreement. Customer
Data includes, but is not limited to, information regarding a User's identity social security number,
telephone number, credit card number, e-mail address, account information, service purchase
and usage information.
4.3 Use of Customer Data. ltron may only collect, access, use, maintain, or disclose
Customer Data to fulfill its obligations under this Agreement. Customer exclusively owns all
Customer Data and ltron agrees to return, or at the election of Customer, destroy (and confirm in
writing the destruction) all Customer Data upon the termination or expiration of this Agreement,
or earlier if requested to do so in writing by Customer.
4.4 Reservation of Rights to Customer. Subject to the limited rights granted by
Customer hereunder, ltron acquires no right, title or interest from Customer or its licensors under
this Agreement in or to Customer Data, including any Intellectual Property rights (defined below)
in that Customer Data.
4.5 Safeguards. ltron will employ administrative, physical, and technical safeguards
that are reasonably designed to prevent unauthorized collection, access, disclosure, and use of
Customer Data while in its custody ("Safeguards"). The Safeguards ltron employs must: (1) meet,
at a minimum, industry practice; and (2) be reasonably designed to ensure that only ltron
personnel with a need to know the Customer Data have access to it. ltron will promptly notify
Customer of any known breach of any Safeguards, and ltron and Customer will cooperate to
investigate and remedy any such breach and any related dispute, inquiry, or claim.
5. Warranties.
5.1 Services & Deliverables Warranties. Express warranties for products and
services (the Express Warranties") will be stated in the applicable Addenda for the period stated
therein (the "Express Warranty Period").
2
Exhibit "8"
5.2 Certain Warranty Exclusions. The warranties under this agreement and the
addenda do not cover problems caused by external causes, including accidents, acts of
vandalism, abuse, misuse, inadequate maintenance, unknown or unforeseen electromagnetic
disturbances on the network, problems with electrical power, or with the quality of the water, the
energy or the network, acts of god, service (including installation or de-installation) not performed
or authorized by ltron.
5.3 Disclaimer of Warranties. Warranties under this agreement, together with all
express warranties contained in any addendum, statement of work, or otherwise incorporated in
this agreement, constitute and express the entire statement of the parties with respect to
warranties. The parties disclaim all express or implied warranties, conditions or representations
including, without limitation, (i) implied warranties of merchantability or fitness for a particular
purpose, (ii) warranties of title and against infringement and (iii) warranties arising from a course
of dealing, usage or trade practice. To the extent any implied warranty cannot be excluded, such
warranty is limited in duration to the express warranty period.
6. Limitation of Liability.
6.1 No Consequential Damages. Neither party will be liable hereunder for
consequential, indirect or punitive damages (including lost profits or savings) for any cause of
action, whether in contract, tort or otherwise, even if the party was or should have been aware of
the possibility of these damages
6.2 Fee Limitation. In no event shall either party be liable for damages in excess of
three million dollars ($3,000,000), including but not limited to ltron's obligations under section 9
of the main body of the agreement ("indemnification").
7. Intellectual Property.
7.1 Definition. "Intellectual Property" means intellectual and industrial property rights,
and moral rights or similar or analogous proprietary rights, pertaining to a particular invention,
work of authorship, symbol or other mark or designation indicative of source or quality, or other
particular item of tangible or intangible property, arising under statutory or common law or by
contract, in the United States or another country that recognizes such rights, whether or not
perfected, now existing or hereafter filed, issued, or acquired, including: (i) patent rights
associated with an invention and processes (including business processes), methods and
apparatuses entailed by such invention (including, as applicable, the rights to make, use, sell,
offer to sell, import , or have made, and the rights to file and prosecute patent applications and
provisional patent applications); (ii) rights associated with works of authorship, including
copyrights and mask work rights (including the rights to copy, adapt, distribute, display, perform,
and create derivative works); (iii) rights relating to the protection of trade secrets and confidential
information (including the rights to use and disclose); (iv) trademarks, service marks, trade dress,
trade names, and design patent rights (including the right to goodwill appertaining thereto); (v)
moral rights; and (vi) other rights analogous, similar, or comparable to those described by the
foregoing clauses (i) through (v), and other proprietary rights relating to intangible property
(including licensing rights and shop rights).
7.2 Reservation of Intellectual Property Rights. ltron reserves all rights, title and
interest in and to all of its Intellectual Property. Customer reserves all rights, title and interest in
and to all of its Intellectual Property. All work product produced by ltron or its agents, employees,
and subcontractors pursuant to this Agreement specifically for Customer is the property of
Customer.
3
Exhibit "B"
7.3 Suggestions. ltron shall have a royalty-free, worldwide, irrevocable, perpetual
license to use and incorporate into its products and services any suggestions, enhancement
requests, recommendations or other feedback provided by Customer.
8. Miscellaneous.
8.1 Waivers. No delay or failure to require performance of any provision of this
Agreement shall constitute a waiver of that provision. No waiver granted under this Agreement
as to any one provision herein shall constitute a subsequent waiver of such provision or of any
other provision herein, nor shall it constitute the waiver of any performance other than the actual
performance specifically waived.
8.2 No Assignment. This Agreement is personal to each Party, and none of the rights
of a Party hereunder shall be sold, transferred, assigned or sublicensed by a Party.
8.3 Captions; Section Numbers. Article, section and paragraph numbers and
captions are provided for convenience of reference and do not constitute a part of this Agreement.
Any references to a particular Section of this Agreement will be deemed to include reference to
any and all subsections thereof.
8.4 Neither Party Deemed Drafter. Despite the possibility that one Party or its
representatives may have prepared the initial draft of this Agreement or any provision or played
a greater role in the preparation of subsequent drafts, the parties agree that neither of them will
be deemed the drafter of this Agreement and that, in construing this Agreement, no provision
hereof will be construed in favor of one Party on the ground that such provision was drafted by
the other.
8.5 Expenses. Each Party will be responsible for, and will pay, all expenses paid or
incurred by it in connection with the planning, negotiation, and consummation of this Agreement.
8.6 Anti-Corruption. Customer has not received or been offered any illegal or
improper bribe, kickback, payment, gift, or thing of value from an ltron employee or agent in
connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary
course of business do not violate the above restriction. If Customer learns of any violation of the
above restriction, it will use reasonable efforts to promptly notify ltron's Law Department via the
contact information in the notices section.
8.7 Relationship of the Parties. The Parties are independent contractors for all
purposes and at all times. This Agreement does not create a partnership, franchise, joint venture,
agency, fiduciary, or employment relationship between the Parties. ltron has the responsibility
for, and control over, the methods and details of performing services and providing products under
this Agreement. ltron will provide all tools, materials, training, hiring, supervision, work policies
and procedures, and be responsible for the compensation, discipline and termination of ltron
personnel. Neither Party has any authority to act on behalf of, or to bind the other to any
obligation.
8.8 Compliance with Law. ltron and Customer will at all times perform their respective
obligations under this Agreement in compliance in all material respects with all applicable foreign,
domestic, state, and local laws and regulations of all applicable foreign and domestic jurisdictions,
and in such a manner as not to cause the other to be in material violation of any applicable laws
4
Exhibit "B"
or regulations including any applicable requirements of any foreign, domestic, state, or local
authority regulating health, safety, employment, the environment, consumer protection, security,
exportation, information services, or telecommunications.
8.9 Governing Law. This Agreement and performance hereunder will be governed by
and construed in accordance with the laws of the State of California without reference to their
conflicts of law principles or the United Nations Convention on Contracts for the Sale of Goods.
8.10 Forum Selection. The Parties agree that all actions and proceedings arising out
of or related to this Agreement, except as necessary to enforce indemnity or defense obligations,
will be brought only in a state court located in San Diego County, California or in the United States
District Court for the Southern District of California. The Parties hereby consent to such venue
and to the jurisdiction of such courts over the subject matter of such proceeding and themselves.
8.11 Notices. Except as otherwise specified in this Agreement, all notices, permissions
and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i)
personal delivery, (ii) the second business day after mailing, (iii) the second business day after
sending by overnight delivery, (iv) the second business day after sending by confirmed facsimile,
or (iv), except for legal notices, the first business day after sending by email. All legal notices shall
be clearly identified as such.
8.12 Severability. If any provision of this Agreement or its applications to particular
circumstances is determined by a court of competent jurisdiction to be invalid or unenforceable,
that provision (or its application to those circumstances) will be deemed stricken and the
remainder of this Agreement (and the application of that provision to other circumstances) will
continue in full force and effect insofar as it remains a workable instrument to accomplish the
intent and purposes of the parties; the parties will replace the severed provision with the provision
that will come closest to reflecting the intention of the parties underlying the severed provision but
that will be valid, legal, and enforceable.
8.13 Force Majeure. Except for the obligation to pay monies due and owing, neither
Party shall be liable for any delay or failure in performance due to events outside the defaulting
Party's reasonable control, including without limitation acts of God, earthquake, labor disputes,
industry wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire,
epidemics, or delays of common carriers or other circumstances beyond its reasonable control.
The obligations and rights of the defaulting Party shall be extended for a period equal to the period
during which such event prevented such Party's performance.
8.14 No Third Party Rights. This Agreement is entered into only for the benefit of
Customer and ltron and no other person or entity shall have the right to enforce any of its terms.
8.15 Authorization. Each Party represents and warrants that the signing, delivery and
performance of this Agreement has been properly authorized.
8.16 Counterparts. This Agreement may be executed by facsimile or scan and in
counterparts, which taken together shall form one legal instrument.
[Transaction Summary Follows]
5
Exhibit "B"
TRANSACTION SUMMARY
TO
MASTER SALES AGREEMENT
Technology & Services Addendum to Master Sales Agreement
1. Equipment Purchase & Warranty Schedule Addendum
2. Software License Addendum
3. Maintenance & Support Services Addendum
4 . Installation/Implementation Services Addendum
5. Cloud Infrastructure Service Addendum(c) (dl
6. Software-as-a-Service Addendum (e)
7. Managed Services Addendum (fl
8. Managed Services In-Field Maintenance Option
jgl
D
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D
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D
D
[Note (c): Cloud Infrastructure Service requires the purchase of a Software License for the
application which will be run, maintained, and supported by ltron on ltron's Cloud Infrastructure.
If not perpetual, the term of the software license must be for at least the term of the Cloud
Infrastructure services.}
[Note (d): Cloud Infrastructure Service also requires the purchase of Software Maintenance &
Support Services for the duration of the software license.]
[Note (e): A software license is not provided in connection with Software-as-a-Service, which is
a subscription service only. Accordingly, no Software License Addendum will be included for
applications provided as Software-as-a-Service.]
[Note (k): Managed Services is a subscription service only and includes Software-as-a-Service.
(Please ensure that the Software-as-a-Service Option is also selected. Software License
Addendum will not be included for applications provided as part of Managed Services. ]
I Pricing Summary (Exhibit "A'?
BMR# 9795-16 Ver3 Feb
6
Exhibit "8"
TECHNOLOGY & SERVICES ADDENDUM
-Equipment Purchase & Warranty Schedule -
1. Ordering of Equipment. During the term of the Agreement, Customer shall order
quantities of equipment by issuing a purchase order to ltron, with a requested ship date agreeable
to both Parties -in each case specifying the type and quantity of equipment, the shipment
destination and the requested ship date.
2. Firmware. The purchase of equipment manufactured by ltron includes a perpetual,
irrevocable license to use and execute any software embedded in the equipment. The license to
any software embedded in third party equipment purchased by Customer through ltron shall be
between Customer and the manufacturer of such third party equipment.
3. Equipment Invoicing. ltron will invoice Customer for equipment upon shipment.
4. Ordering Lead Time & Ship Date. Unless otherwise provided in an agreed-upon purchase
order, the required lead time for equipment manufactured by ltron shall be ninety (90) days between
the date ltron receives the purchase order and the ship date; and the required lead time for third
party equipment shall be the applicable third party manufacturer's then-current, standard lead time.
ltron shall have no obligation to accept any requested ship date that is sooner than the required
lead time.
5. Order Cancellation & Rescheduling. Unless otherwise provided in an agreed-upon
purchase order, a purchase order for equipment may not be canceled or rescheduled by
Customer.
6. Forecasts. If requested by ltron, Customer will provide non-binding forecasts, at
reasonable intervals, of Customer's anticipated demand and ship dates for equipment.
7. Delivery & Risk of Loss.
7.1 Delivery. ltron shall cause the equipment to be delivered to Customer (or
Customer's authorized agent) at customer's expense in accordance with the purchase order and
by the specified ship date, provided that all purchase order content and lead time requirements
have been met.
7.2 Title and Risk of Loss. Title to equipment and risk of loss or damage will transfer
to Customer on the ship date, with the exception that title and risk of loss will transfer to Customer
upon delivery where the ship-to location is in Canada.
8. Documentation. ltron shall make its standard product documentation available via
download. ltron will provide Customer with download instructions.
9. Inspection by Customer. Customer shall inspect a shipment within a reasonable period
of time after receiving shipment-and in all events no longer than seven (7) days-to confirm that
the items delivered are the equipment ordered and that the quantity received is the same as the
quantity ordered.
10. Limited Equipment Warranty.
10.1 Limited Warranty. ltron warrants to Customer that the ltron-manufactured
equipment will be free from defects in materials and workmanship and will conform to the
applicable specifications for a period of one (1) year from the date of shipment, unless otherwise
7
Exhibit "B"
stated in the attached warranty schedule for ltron-manufacture equipment. For avoidance of
doubt, components parts of ltron-manufactured equipment that are provided by third-party
manufacturers and developers -and which are integrated into ltron-manufactured equipment -
are covered by this Section 10 warranty.
10.2 Repair or Replacement.
1 0.2.1 ltron reserves the option to repair or replace the ltron-manufactured equipment
returned to ltron's facilities under warranty. ltron's warranty under this Section, does not
include freight to the ltron designated facilities; however, it does include return freight to
Customer's location in the event that the returned unit of ltron-manufactured equipment is
determined to be faulty and under warranty.
1 0.2.2 Labor costs associated with removal or reinstallation of failed equipment at
Customer location, after the initial deployment of equipment, is not included in ltron's
warranty under this Section.
10.3 Warranty on Repaired or Replaced Equipment. Repaired and replacement
ltron-manufactured equipment will be warranted for the remainder of the original warranty period
set forth above, but no less than six (6) months from repair or replacement.
11. Exclusions to Warranty on ltron-Manufactured Equipment. The above Section 10
warranty on ltron-manufactured equipment does not cover damage due to external causes,
including accident, abuse, misuse, inadequate maintenance, problems with electrical power, acts
of God; service (including installation or de-installation) not performed or authorized by ltron;
usage not in accordance with product instructions or in a configuration not approved by ltron;
normal wear and tear; and problems caused by use of parts and components that are not supplied
by ltron. The warranty provided herein shall be void if the equipment is modified in a way not
authorized in writing by ltron.
12. Pass-Through Warranties on Third-Party Equipment. ltron is not the manufacturer of
the equipment specifically identified in the third party equipment warranty schedule as third party
equipment and makes no representations or warranties whatsoever, directly or indirectly, express
or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality,
performance or non-infringement of the third party equipment. With respect to ltron, customer
purchases third party equipment "as is." third party equipment shall be subject to any warranties
provided by the third party equipment manufacturer. Modifications may void or otherwise limit any
warranty applicable to third party equipment. See the attached Third Party Equipment Warranty
Schedule. if applicable. for an informational use only summary of third party warranties for Third
Party Equipment. ltron will act as a liaison with the Third Party Equipment providers in regard to
the Third Party Equipment warranties and will make commercially reasonable efforts to assist
Customer in enforcing those warranties.
[Warranty Schedule Follows]
8
Exhibit "8"
TECHNOLOGY & SERVICES ADDENDUM
-Maintenance & Support Services (Hardware & Software) -
·1. Additional Definitions. The following defined terms are in addition to those defined in the
Agreement:
"Annual Adjustment" means ltron's standard annual price increase.
"Annual Fee" means the annual fee identified in the pricing summary for each category of
Covered Product plus the Annual Adjustment, if any. The Annual Fee for any partial Maintenance
Year (i.e., for Covered Products with a Maintenance Commencement Date that falls after the
beginning of the Maintenance Year) shall be prorated based on the applicable number of months
Customer is to receive Services under this Addendum during such Maintenance Year.
"Contact Documents" means the "ltron Support Services Contacts" document, which can be
obtained by calling (877) 487-6602, including for example, the ltron Equipment Repair Table and
Working Effectively with ltron Client Services documents.
"Covered Product" means Covered Software and Covered Equipment.
"Covered Software" means the software identified in the pricing summary to this Addendum.
"Covered Equipment" means the equipment identified in the pricing summary to this Addendum
which is ltron Equipment. (ltron Equipment is distinguished from equipment manufactured by a
third-party that Customer may purchase through ltron under an Equipment Purchase Agreement
Document or other commercial sales agreement.
"End of Support" means a commercial decision by ltron to discontinue maintenance and support
services for specific Covered Products or to discontinue offering a particular Covered Product to
ltron customers in general, along with that Covered Product's associated maintenance and
support.
"Error" means a failure of the Covered Software or Covered Software platform to substantially
comply with the applicable Specifications.
"Fix" means a correction of an Error, including a work-around, in order for Covered Software to
function in accordance with the applicable Specifications.
"Improvement" means an update, modification, enhancement, extension, new version
(regardless of name or number), new module, or other change to Covered Software that is
developed or otherwise provided by ltron.
"M&S Commencement Date" means the date upon and after which a Covered Product is entitled
to receive Services under this Addendum in accordance with the terms of this Addendum, which
-unless otherwise stated in the pricing summary-is (a) for Covered Software that is an ltron
product, the first day of the month following delivery by agreed-upon method of the Covered
Software (e.g., electronic or physical medium), except that the Maintenance Commencement
Date for MV-RS Software is the warranty expiration date; and (2) for Covered Equipment that is
ltron Equipment, the warranty expiration date.
"M&S Services Option" means the maintenance and support services option for Covered
Equipment or Covered Software, including Service Levels, as set forth in Attachment B-1.
10
Exhibit "8"
"Maintenance Year" means, for each Covered Product, a period of one (1) year beginning on the
Effective Date, any anniversary thereof, or agreed-upon coverage start date.
"Mandatory Revision" means a software revision that Customer is required to accept in order to
correct or address any one of the following issues: a material Error or a material security breach;
or third party infringement claim.
"Operating Condition" means that the Covered Equipment performs in accordance with the
applicable Specifications.
"Principal Services Contacts" means the Customer personnel that Customer is required to
designate to serve as Customer's principal relationship contacts for all Services under this
Addendum.
"Loaned Mobile/Handheld Equipment" means Mobile Collector and/or Handheld units loaned
by ltron to Customer, under the terms of this Addendum while Services are being performed on
Customer's Mobile Collector and/or Handheld.
"Service Levels" means, with respect to this Addendum, the response time, effort level, and
escalation path procedures and guidelines described in Attachment 1 to this Addendum.
"Software Release" means a collection of Fixes or Improvements made available to ltron
customers (either via physical media or electronic download access).
"Service Request" means a request initiated by Customer for a technical support service within
the scope of the applicable maintenance and support Services option purchased by Customer.
"Technical Support Services" means ltron technical support services provided by technical
representatives by telephone, email or other remote means to assist Customer's Principal Service
Contacts with questions related to the operation of the Covered Products.
2. Effect of Termination.
2.1 Termination of Agreement. Except as otherwise provided in Section 2.1.2 below, ltron
shall not be obligated to provide any Services under this Addendum upon termination of this
Addendum.
2.1.1 If either Party terminates the Agreement Customer shall not be entitled to a
prorated refund of the applicable Fee.
2.1.2 Unless ltron terminates the Agreement for breach or default by Customer, ltron will
continue to provide Services under this Addendum that were purchased by Customer prior to the
termination date -and the terms and conditions of this Addendum will continue to govern such
Services.
2.2 End of Support. ltron may discontinue Services for any Covered Product, effective as of
the end of the current Maintenance Year, by giving Customer written notice of such
discontinuance no less than ninety (90) days prior to the end of such Maintenance Year. If the
End of Support date is scheduled within a subsequent Maintenance Year, Fees for that
subsequent term will be pro-rated through the appropriate End of Support date. At Customer's
request, ltron may elect to provide custom support for products for which Maintenance Services
have been discontinued at ltron's then-current rates. Unless otherwise agreed by the Parties in
accordance with the foregoing sentence, ltron shall have no obligation to provide Services under
11
Exhibit "8"
this Addendum with respect to Covered Products for which ltron has discontinued Services
pursuant to this Section.
3. Principal Services Contacts.
3.1 Designation by Customer. Customer shall designate no more than two (2)
Principal Services Contacts for each Covered Product, as identified in the Contract Documents,
to serve as administrative liaisons for all matters pertaining to the Services provided under this
Addendum for such Covered Product line, and shall provide their contact information to ltron's
customer account representative. Principal Services Contacts shall report problems with Covered
Products (each such report, a "Service Request") as soon as practicable for entry into ltron's
support tracking system. Although it is Customer's sole right to choose its Principal Services
Contacts, Customer and ltron acknowledge that each Principal Services Contact should have the
appropriate technical skills and training for the position. If Customer replaces a Principal Services
Contact, Customer will provided updated contact information to ltron, and the new Principal
Services Contact will undergo the same initial training as described in Section 3.2.
3.2 Training of Principal Services Contacts. Before a Principal Services Contact
interfaces with ltron, the Principal Services Contact must attend training sessions offered by ltron,
an ltron approved trainer, or Customer's training program approved by ltron to ensure that the
Principal Services Contact is (a) knowledgeable about the operation of the Covered Products,
and (b) qualified to perform problem determination and remedial functions with respect to the
Covered Products. Such training sessions will be at ltron's then-current rates. Customer will be
solely responsible for all travel and other expenses incurred in connection with each Principal
Services Contact's attending the training sessions. The Principal Services Contact should have
the skills and capabilities to train other Customer personnel on Covered Products ("train-the-
trainer'').
3.3 Additional Training. If ltron notifies C4stomer that additional training of a Principal
Services Contact is necessary, Customer will promptly ensure that the Principal Services Contact
receive such training.
4. Technical Support Services & Service Requests.
4.1 Support Services. ltron will provide Technical Support Services during its then-
current normal business hours. Technical Support Services include troubleshooting, problem
diagnosis, release or system management, and recommendations for fully utilizing the Covered
Products. Customer acknowledges and agrees that Technical Support Services are not intended
as a substitute for training of Customer personnel, field support, or ltron professional services -
all of which can be purchased separately. Nor will Customer use Technical Support Services in
lieu of having qualified and trained support personnel of its own. ltron's current Technical Support
Services contact and support hours are described in the Contacts Document.
4.2 Service Request Process. Customer shall submit Service Requests in the
manner required by the Contact Documents and Service Levels.
4.3 Field Support. Upon mutual agreement of the Parties, ltron will dispatch support
personnel to Customer's location to provide technical support. Such support will be billed at ltron's
then-current hourly rates (with reasonable travel and living expenses invoiced at ltron's cost
without markup), unless the cause of the reported problem is found to be the fault of ltron.
12
Exhibit "B"
5. Software Maintenance.
5.1 Fixes. ltron shall make commercially reasonable efforts to provide a Fix in
accordance with the Service Levels. ltron's obligations with respect to Service Levels are
contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required
of ltron, (ii) responding to requests made by ltron within the applicable Response Time, and (iii)
assigning its most qualified personnel to help ltron address the Error.
5.2 Documentation. ltron will make an electronic copy of the Documentation available
to Customer at no additional charge via physical media or download access. ltron will maintain a
copy of its most recent supported version of the executable ltron Software to be made available
to Customer as necessary in the event of corrupted or inoperative ltron Software.
5.3 Improvements. ltron shall provide Improvements, if any, at its then-current price
for such Improvements (or at no charge if such Improvements are made available to ltron
customers generally at no charge).
5.4 Software Releases.
5.4.1 Release Numbering Convention. Fixes and/or Improvements are made available
to customers through periodic Software Releases. For informational purposes, ltron's current
typical practice (which may be changed at any time in ltron's discretion) is to provide Software
Releases using the numbering convention "XX.YY.ZZ."
• The "XX" in ltron's numbering convention refers to a "System Release," which
is a new version of the item of Covered Software. A System Release may
include Fixes, Improvements or interfaces to new functional modules or
platforms not previously supported by ltron.
• The "YY" in ltron's numbering convention refers to a "Service Pack Release,"
which is an update to a System Release. Service Pack Releases may include
Fixes or Improvements and are provided to ltron customers generally on a
periodic basis.
• The "ZZ" in ltron's numbering convention refers to a "Hot Fix Release," which
is an un-scheduled release provided to one or more customers as a short-term,
temporary fix to a Severity Level 1 Error. While not utilized by all ltron software
product lines, Hot Fix Releases are not made available to ltron customers
generally but may be included in the next scheduled Service Pack for general
release.
5.4.2 Support for Releases of ltron Enterprise Edition and OpenWay Software. This
Section 5.4.2 applies only to Covered Software that are ltron Enterprise Edition or OpenWay
software products. Services for ltron Enterprise Edition and OpenWay software products under
this Addendum shall be limited to the most recent System Release and the prior System Release
(and the most current Service Pack Release associated with such System Release). Customer
will test and install Service Pack Releases associated with the System Release in use by
Customer within twelve (12) months of such Service Pack Releases being made available to
Customer. Customer will fully test and upgrade to the latest System Release at least every
twenty-four (24) to thirty-six (36) months.
13
Exhibit "B"
5.4.2.1 ltron may elect to provide Services under this Addendum for an
unsupported Software Release of Covered Software at its then-current rates for customer
support.
5.4.3 Support for Releases of all Other ltron Software. This Section 5.4.3 applies to
all Covered Software other than ltron Enterprise Edition and OpenWay Software products.
Services under this Addendum for all Covered Software other than ltron Enterprise Edition and
OpenWay software products shall be limited to the most recent System Release and the two prior
Service Pack Releases. Customer will test and install System Releases and Service Pack
Releases within twelve (12) months of such Releases being made available to Customer. ltron
may elect to provide Services under this Addendum for an unsupported Software Release of
Covered Software at its then-current rates for customer support.
5.4.4 Installation Services for Software Releases. This Section 5.4.4 applies to all
Covered Software. Installation services under this Addendum will include limited, remote phone
support, for all Covered Software, on ltron certified server configurations, are applicable for one
product server and one non-production server owned (test, training, or back-up -for example)
and operated by the Customer. At Customer's request, ltron may provide Software Release
installation services for install of System Releases or Service Packs on additional production or
non-production servers at ltron's then-current hourly rates.
5.4.4.1 ltron may elect to provide Services under this Addendum for installation of
System Release of Covered Software on un-certified server configurations at its then-current
rates for customer support.
5.5 Mandatory Revision. In the event that ltron, in its sole reasonable discretion,
determines that any Covered Software is, or may (as applicable) be: (i) subject to a material Error;
(ii) the subject of a material security breach; or, (iii) be subject to a third party infringement claim
or suit of any kind, ltron may issue a Mandatory Revision.
5.6 Disclaimer of Liability. ltron disclaims all liability and obligations that arise due
to, or are result of, customer's failure to test and install a mandatory revision in a timely fashion.
5.7 lnteroperability. ltron makes no representation or warranty regarding the ability
of the Covered Software to intemperate with third party hardware or software other than software
or hardware identified as compatible with the Covered Software in ltron's Documentation for the
applicable Covered Software.
5.8 Restoring Software to Maintenance Services. If Customer declines Services
under this Addendum after the end of warranty or discontinues Services under this Addendum for
any Covered Software, and thereafter wishes to resume such Services for the most recent
Software Release of that Covered Software, Customer shall, prior to receiving Services, notify
ltron in writing of its request for Services and pay ltron's then-current re-initiation fee.
5.9 Exclusions. ltron shall have no obligation to Customer for any Services under this
Addendum to the extent any Covered Software is adversely affected by: (i) use of the Covered
Software in combination with other software, equipment or communications networks that are not
referenced in the Documentation; (ii) any modification to the software, operating environment,
system installation, operating instructions, scripts, or database configuration that is made other
than by ltron,; (iii) the use of a version of the Covered Software that is not supported by ltron; (iv)
Customer's failure to implement a Fix provided by ltron; (v) the maintenance and/or support of
the Covered Software other than by ltron; (vi) viruses introduced through no fault of ltron; (vii) use
14
Exhibit "8"
of the Covered Software other than as authorized by ltron and the applicable license, including
Covered Software operated on Covered Equipment that has been serviced or repaired by a third
party that is not ltron certified; or (viii) Customer's failure to perform Customer responsibilities in
accordance with this Addendum.
5.10 Customer Software Responsibilities.
5.1 0.1 Support Tools. Customer will support remote access to the Covered Software by
ltron Personnel assigned to provide Services under this Addendum for purposes of remote
diagnosis and troubleshooting of the Covered Software.
5.1 0.2 System Configuration and Administration. Customer will ensure that its
equipment, system peripherals, operating system, and data communications environment
associated with the Covered Software is configured, operated, and maintained in accordance with
the Documentation and any applicable third party documentation. These administrative activities
shall include but not be limited to: checking audit logs, clearing discovered exceptions, and
performing daily, weekly, and monthly operational tasks and system responsibilities. Customer is
responsible for any change they make to the software system, operating system, database or
network configuration or change to installation procedures, scripts, and provisions that may affect
the usability or operation of the Software or Data. Customer will consult with ltron prior to making
changes that may affect the operation of the Covered Software.
5.1 0.3 Network Administration. Customer will monitor and maintain, repair, replace and
upgrade its local, and wide area network components (if any)-including network servers, network
clients, network hubs, routers, modems, and other software components necessary for efficient
and reliable network operations associated with the Covered Software-to ensure continued
conformance with the Documentation and any applicable third party documentation. In addition,
Customer will administer related host names, Internet Protocol addresses, network interfaces,
access, security, communications, and equipment and software version control.
5.1 0.4 Database Administration. Customer will administer the agreed upon database(s)
associated with the Covered Software, including hardware and software components, in
accordance with the Documentation or any applicable third party documentation, which
administration shall include, monitoring the database server, backing up electrical power sources,
and configuring and administering of database schema, application interfaces, networking
operating system, communications, and file transfer software. Customer will maintain database
files (e.g., truncate, cleanup, and delete files consistent with industry standard practices) and
perform regular data backup and data archiving.
5.1 0.5 Data Review. If ltron determines that it is necessary to evaluate Customer data in
order to reproduce error conditions not reproducible with ltron's standard test data sets, Customer
will provide ltron with access to such data. ltron will manage such data in a secure manner while
in use and delete the data from ltron systems upon completion of the investigation. ltron shall not
be liable for any delay or failure to resolve the problem if access to such production data is denied
to ltron.
6. Equipment Maintenance.
6.1 Preventive and Corrective Maintenance. Upon receipt of an item of Covered
Equipment, ltron shall (i) perform the preventive Services under this Addendum that ltron
determines are reasonably necessary to maintain the Covered Equipment in Operating Condition,
and (ii) diagnose and correct any failure in such Covered Equipment as necessary to meet
15
Exhibit "8"
Operating Condition (excluding minor cosmetic deficiencies such as blemishes, dents or
scratches).
6.2 Maintenance Procedures. Customer shall initiate a request under this Addendum
for Services for Covered Equipment by delivering the item in question to the applicable ltron
address identified on the ltron Equipment Repair Table (the "Repair Table"), which can be
obtained by calling (877) 487-6602. Return of the Covered Equipment shall be at Customer's
expense and in accordance with the applicable Return Material Authorization ("RMA")
procedures. Upon receipt of Covered Equipment (with the required information) under ltron's RMA
procedures, ltron shall assess the item to determine (a) whether it is in fact Covered Equipment
and (b) whether the maintenance requested is included within the Services ordered by Customer
and not otherwise excluded from coverage as provided herein. If the returned equipment is
determined to be Covered Equipment and the maintenance requested is in fact included in the
Services ordered by Customer, ltron shall then provide the applicable Services and shall make
commercially reasonable efforts to return the item of Covered ltron Equipment to Customer at
ltron's expense within the applicable turnaround time identified on the Repair Table. Returned
equipment that is found not to be Covered Equipment, or if maintenance or support that is
requested is determined not to be included in the Service ordered by Customer, then ltron will
provide a quote to Customer under Section 6.4, below.
6.3 Exclusions. The Services described herein do not include repairs related to: (i)
damage due to external causes, including accident, abuse, misuse, inadequate maintenance,
problems with electrical power, acts of God; usage not in accordance with product instructions or
in a configuration not approved by ltron; (ii) service or repair processes (including installation or
de-installation of equipment, parts, or firmware/software) not performed or authorized by ltron; (iii)
use of parts, configurations or repair depots not certified by ltron; or (iv) Customer's failure to
perform Customer responsibilities in accordance with this Addendum, including caring for
Products in accordance with System Documentation.
6.4 Estimation Fees. ltron will provide Customer with a price quote for the estimated
cost, including labor, materials and shipping, for any repairs that are requested, but not included
under this Addendum (whether because the item is not covered or because the nature of the
repair is not included). If Customer elects to have ltron proceed with the requested maintenance
on any such item, ltron shall provide such services at ltron's then-current rates. If Customer elects
not to proceed with the requested repair, ltron will return the item of equipment at Customer's
expense. ltron may charge Customer its then-current handling, inspection and shipping fees for
any such returned equipment.
6.5 Adding/Restoring Equipment to Maintenance Services. Following the effective
date of this M&S Addendum, additional Covered Equipment purchased by Customer, of a similar
type and model already covered by Services under this Addendum, shall automatically be
deemed to be Covered Equipment following expiration of the warranty for such equipment. If
Customer declines coverage after the end of warranty, discontinues Services for any Covered
Equipment or has Covered Equipment serviced or repaired by a third party that is not ltron
certified, and thereafter wishes to add such equipment as Covered Equipment, ltron may, prior to
such equipment being included as Covered Equipment,(i) inspect such equipment at its then-
current rates to determine whether it is in Operating Condition and/or (ii) charge its then-current
re-certification fee, in addition to the Covered Equipment's first term maintenance fee.
6.6 Customer Equipment Responsibilities. ltron shall make available, and
Customer shall obtain, a copy of ltron's user documentation for Covered Equipment and
Customer shall perform regular preventive maintenance for each such item in accordance with
16
Exhibit "8"
such documentation. Customer shall also keep accurate records of Covered Equipment serial
numbers and locations to assist ltron with the Services.
6. 7 Loaner Equipment Program. Subject to the requirements below, ltron shall make
commercially reasonable efforts to provide Customer Loaned Mobile/Handheld Equipment for the
Customer to use (each an item of while a Mobile Collector or Handheld unit that is Covered
Equipment is receiving Services under this Loaned Mobile/Handheld Equipment. ltron shall
provide Loaned Mobile/Handheld Equipment if all the following criteria are satisfied:
6.7.1 Customer has maintained an inventory of spare Mobile Collectors or Handheld
units equal to at least ten (6) percent of the number of Mobile Collectors or Handheld units
deployed in Customer's service territory (having at least one spare Mobile Collector) and such
inventory has been depleted;
6. 7.2 ltron has provided preventive Maintenance Services for each of Customer's Mobile
Collectors or Handheld Devices (as applicable) that are Covered Equipment in the 12-month
period prior to Customer's request for Loaned Mobile/Handheld Equipment; and
6.7.3 ltron is unable to return the Mobile Collector or Handheld Devices, as applicable,
receiving Services within the applicable turnaround time set forth in the Repair Table.
6.7.4 Loaned Mobile/Handheld Equipment will remain the property of ltron and shall be
returned to ltron promptly upon receipt of the corresponding item of Covered Equipment. For
Loaned Mobile/Handheld Equipment that is not returned within fourteen (14) days from shipment
of the corresponding item of Covered Equipment, ltron may charge a late fee equal to ten (1 0)
percent of the then-current list price for the item of Loaned Mobile/Handheld Equipment for each
thirty (30) day period during which the item of Loaned Mobile/Handheld Equipment remains
unreturned. ltron shall pay the cost of delivering Loaned Mobile/Handheld Equipment to Customer
and Customer shall pay the cost of returning Loaned Mobile/Handheld Equipment to ltron.
7. Fees and Invoicing. As compensation for the Services under this Addendum, Customer
shall, in advance, pay to ltron the Annual Fee for each Maintenance Year in which it receives
Services under this Addendum. ltron shall invoice Customer for Services to be provided during
the first Maintenance Year as soon as practicable following the Effective Date. For Services
provided during any subsequent Maintenance Year, including Services for newly purchased or
licensed Covered Products, ltron shall provide Customer with a renewal notice at least one-
hundred twenty (120) days prior to the commencement of each Maintenance Year. Customer may
discontinue Maintenance Services for a Product by providing ltron with written notice of non-
renewal for such Product no less than ninety (90) days prior to the commencement of any
subsequent Maintenance Year.· Approximately twenty (20) days prior to the commencement of
any subsequent Maintenance Year, ltron shall provide Customer with an invoice for the Annual
Fee payable by Customer for the forthcoming Maintenance Year (including the Annual
Adjustment). ltron may, in its discretion, invoice Customer for Services for a Covered Product that
is added during the course of any Maintenance Year as soon as such Covered Product has been
added or at the beginning of the next Maintenance Year.
8. Support for Third Party Products. For any Covered Product that is a "Third-Party Product"
(each, a "Third Party Covered Product") ltron shall provide first-tier Customer support by handling
all initial Customer inquiries, identifying the component involved in the problem and obtaining
appropriate documentation of such inquiry or problem. In addition, ltron shall make commercially
reasonable efforts to facilitate Customer's receipt of maintenance and support for such Third Party
17
Exhibit "8"
Products consistent with the maintenance terms identified on an order document for such Third
Party Products. Notwithstanding anything else to the contrary, ltron's sole obligation with respect
to maintenance and support for Third Party Products shall be as set forth in this Section.
[Attachment 1 Follows]
18
Exhibit "B"
Attachment 1 to Maintenance & Support Services Addendum
-Software Maintenance & Support Service Levels -
Severity Level Response Times Effort Level and Escalation Path
Severity Level1 . Critical During after-hour ltron will make diligent efforts on a
Business Impact I periods, ltron will 24x7 basis*, or as otherwise agreed
System Down: An Error respond to a critical by the Parties. A SR shall be
for which there is no work-support voice escalated to ltron's TSS Management
around , which causes the messages within 15 Team if a Fix is not provided within 1
Product I Software or a minutes by a return business day of ltron's receipt of the
critical business function I call to Customer, Customers call and creation of the SR.
process of the ltron system which will validate
to be unavailable. System receipt of the critical *24X7 support for Severity Level 1
use and operation cannot support call and begin Errors is not currently available for
continue. the SR process. ltron Meter Products, Energy
During regular Forecasting and Load Research
*Severity 1 errors must be business-hours ltron Products, and Distribution Products.
reported by phone to will begin the SR
initiate the Severity 1 process during
response process. SRs Customer's initial call.
initiated by email or web
interface are logged as a Following the start of
Severity 3 until reviewed the SR process ltron
by ltron Technical Support will respond to
Services and validated as Customer's SR within
a higher priority. 2 business hours with
an investigation
response.
Following the
investigation response,
ltron will update
Customer at three
hour intervals during
each day the SR
remains unresolved, or
as otherwise agreed
by the Parties.
Customer will respond
to an ltron inquiry or
request within three
hours.
19
Exhibit "B"
Severity Level Response Times Effort Level and Escalation Path
Severity Level 2. ltron will respond to ltron will make diligent efforts during
Moderate Business Customer SR within 1 normal business hours. SRs shall be
Impact I Degraded business day and will escalated to ltron's TSS Management
Operation: An Error other update the SR at least Team if a Fix is not provided within 3
than a Severity Level 1 every other day. business days of ltron's receipt of
Error, for which there is no Customer's call and creation of the
work-around, which limits Customer will respond SR.
access or use of the to an ltron inquiry or
software or a business request within 1
function, causing the business day.
system to miss required
business interface or
deadlines. The system
remains available for
operation but in a
restricted fashion.
*Severity 2 errors must be
reported by phone to
initiate the Severity 2
response process. SRs
initiated by email or web
interface are logged as a
Severity 3 until reviewed
by ltron Technical Support
Services and validated as
a higher priority.
Severity Level 3. Minor ltron will respond to ltron technical representatives will
Business Impact I Customer SR within 2 make diligent efforts during normal
Compromised Operation: business days. business hours.
An Error other than a
Severity Level 1 or
Severity Level 2 Error that
has an inconvenient use of
or aces to a software
function. (e.g., a feature is
not working as
documented but a work-
around is available and
significant business
functions are not materially
impaired).
20
Exhibit "8"
Severity Level Response Times Effort Level and Escalation Path
Severity Level 4. No ltron will respond to ltron support representatives will
Business Impact I Customer SR within 3 devote commercially reasonable
Standard Operation: An business days, or as efforts during normal business hours.
Error other than a Severity otherwise agreed by
Level 1, Severity Level 2 or the Parties.
Severity Level 3 Error.
Generally a cosmetic Error
or an Error which does not
degradate Customer's use
of the system.
Severity Level 5. N/A The SR will be evaluated as a
Customer SR for an potential, future product enhancement.
enhancement or new If the enhancement or new
functionality. functionality requires more immediate
attention for Customer, ltron will
engage ltron's Professional Services
Group to create a customized
proposal for Customer, at ltron's then-
current services rates.
21
TECHNOLOGY & SERVICES ADDENDUM
-Installation/Implementation Services -
Exhibit "B"
1. Scope. This Addendum applies where: (a) Customer is purchasing installation services
for Equipment, or (b) Customer is purchasing implementation services for the set-up,
configuration, and validation of Licensed Software, Software-as-a-Service, Managed Services, or
Cloud Infrastructure Service.
2. Invoicing. ltron will invoice Customer for Services as set forth in the applicable SOW or
pricing summary. Services performed on a time and materials basis will be invoiced at the end of
the calendar month in which they are performed. Services performed on a fixed fee basis will be
invoiced as set forth on the applicable SOW or, if not set forth on a SOW, upon completion.
3. Authorized Services. Customer will not pay for, and ltron is not required to provide any
services, for which both a statement of work and purchase order have not been issued by
Customer and accepted by ltron. All changes to scope of work must be approved pursuant to the
change request procedures of the Agreement or applicable statement of work.
4. Customer Responsibilities. Customer shall timely perform all of its assigned, implied or
assumed responsibilities under each statement of work using qualified personnel. Customer shall
also provide ltron with reasonable cooperation in connection with the services, including for
example, by providing ltron with reasonable access to Customer's facilities, service territory,
personnel, systems, and information.
5. Reference Information. If Customer provides ltron any reference information, designs,
technical information, or other information required to be provided by Customer in connection with
the services (collectively, the "Reference Information"), ltron shall be entitled to rely on the
accuracy of such Reference Information.
6. Delays. To the extent Customer's failure to adhere to Section 3 or Section 4 results in any
delay or increases ltron's cost of performing the services, the delay shall be excused, and ltron
reserves the right to increase its fees as necessary to offset its increased costs of performing the
services. ltron will provide Customer with reasonable evidence of its increases costs of performing
the services and will make commercially reasonable efforts to minimize such costs to the extent
practicable under the circumstances.
7. Express Warranties for Professional Services. The warranty period for services
provided is ninety (90) days beginning from the completion date of the services. Unless otherwise
expressly provided in a statement of work or other document expressly incorporated into the
Agreement, as the sole and exclusive warranties offered by ltron in connection with this
Addendum and each statement of work under it, ltron warrants to Customer that:
7.1 Services. Services will be provided in a timely, professional, and workmanlike
manner.
7.2 ltron Personnel. ltron personnel will have the requisite experience, skills,
knowledge, training and education to perform Services in a professional manner and in
accordance with this Addendum and applicable statement of work.
7.3 Remedies. As ltron's sole and exclusive liability and Customer's sole and
exclusive remedy for any material noncompliance by ltron with the warranties provided under this
Section, ltron shall correct the noncompliance within a reasonable period of time under the
22
Exhibit "8"
circumstances, if Customer gives ltron written notice (which notice must describe the
noncompliance in sufficient detail to enable ltron to provide the required corrective action) within
the applicable notice period. If ltron, in its sole discretion, is unable to correct the noncompliance,
its sole obligation will be to refund to Customer the amount paid for the services.
23
TECHNOLOGY & SERVICES ADDENDUM
-Software-as-a-Service -
Exhibit "B"
1. Scope. This Addendum sets forth the terms and conditions for ltron's Software-as-a-
Service.
2. Subscription Service. Software-as-a-Service is offered as a monthly or annual
subscription service. The subscription fee will be charged on the number of provisioned meters
or endpoints. A minimum subscription fee may apply.
3. Sizing. The subscription fee for Software-as-a-Service may be based on system Sizing
Criteria; if so, the Sizing Criteria will be specified in the Service Level attachment to this
Addendum.
4. Term. The minimum service term for Software-as-a-Service is stated in the Agreement.
5. No Contingency on Future Releases. Customer acknowledges and agrees that its
purchases under this Software-as-a-Service Addendum are neither contingent upon the delivery
of any future functionality or features nor dependent on any oral or written public comments made
by ltron regarding future functionality or features.
6. Documentation. Customer has the right to use and make a reasonable number of copies
of the documentation solely for Customer's internal business purposes during the service term.
Documentation will be made available to Customer by download.
7. Reservation of Proprietary Rights by ltron. ltron retains all right, title, and interest to
and control, operation, and maintenance of all ltron network equipment, hardware, infrastructure,
servers, platforms, and the like supporting its Software-as-a-Service.
8. Certain Restrictions on Customer and Conditions on Use of Services
8.1 Restrictions. Customer shall not: (a) remove or modify any program markings or
any notice of ltron's or its licensors' proprietary and intellectual property rights; (b) make the
programs or materials resulting from the Software-as-a-Service available in any manner to any
third-party for use in the third-party's business operations; (c) modify, make derivative works of,
disassemble, reverse compile, or reverse engineer any part of the Software-as-a-Service (the
foregoing prohibition includes but is not limited to ltron data inputs, ltron system data exports,
ltron database schema, and data structures), or access or use the Software-as-a-Service in order
to build or support, and/or assist a third-party in building or supporting, products or services
competitive to ltron; (d) disclose results of any services or program benchmark tests without ltron's
prior written consent; and (d) license, sell, rent, lease, transfer, assign, distribute, display, host,
outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit
or make the Software-as-a-Service available, to any third-party other than, as expressly permitted
under the terms the Agreement; (e) use the Software-as-a-Service to store or transmit infringing,
libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of
third-party privacy rights; (f) use the Software-as-a-Service to store or transmit malicious code;
(g) interfere with or disrupt the integrity or performance of the Software-as-a-Service or third-party
data contained therein; (h) attempt to gain unauthorized access to the Software-as-a-Service or
their related systems or networks; or (i) combine the Software-as-a-Service with any application,
software, hardware, equipment, product, or service, except as expressly authorized by ltron in
advance, in writing.
24
Exhibit "B"
8.2 Conditions. The rights granted to Customer under this Software-as-a-Service
Addendum are also conditioned on the following: (a) the rights of any user licensed to use the
Software-as-a-Service (e.g., on a "named user'' basis) cannot be shared or used by more than
one individual (unless such license is reassigned in its entirety to another authorized user, in
which case the prior authorized user shall no longer have any right to access or use the license);
(b) except as expressly provided herein, no part of the Software-as-a-Service may be copied,
reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form
or by any means, including but not limited to electronic, mechanical, photocopying, recording, or
other means; (c) Customer agrees to make every reasonable effort to prevent unauthorized third-
parties from accessing the Software-as-a-Service; and (d) Customer agrees to use of the
Software-as-a-Service only in accordance with the this Software-as-a-Service Addendum, user
guide, and applicable laws and government regulations.
9. Service Levels & Reporting.
9.1 Service Levels. ltron will use commercially reasonable efforts to provide the
Software-as-a-Service to the Service Levels described in the Service Level attachment to this
Addendum.
9.2 Service Level Reporting. ltron will provide regular Service Level reports to
Customer.
10. Location of Services. Unless otherwise agreed to in writing between ltron and Customer
in advance, ltron will provide the Software-as-a-Service hereunder from ltron locations within the
United States.
11. Technical Support Services. ltron will make available technical representatives with the
answer Customer questions related to the use of Software-as-a-Service, including assisting
Customer with problems it may experience with using the Software-as-a-Service, and offering
recommendations to Customer for fully utilizing the Software-as-a-Service. Training and
professional services are not within the scope of technical support services.
12. Training. Customer may purchase training services for the Software-as-a-Service at
ltron's then-current training rate.
13. Customer Technical Responsibilities. Customer shall be responsible for selecting,
acquiring, paying for, securing and maintaining any equipment and ancillary services needed to
connect to, access, or otherwise use the Software-as-a-Service, including for example -and
without limitation -modems, hardware, servers, software, operating systems, networking
equipment, web servers, and communication services. Customer shall at all times during the
Software-as-a-Service Term be responsible for ensuring compatibility with the Software-as-a-
Service at Customer's sole expense.
14. User Identifications and Passwords. ltron shall provide Customer with user
identifications and passwords ("User IDs") to access the Software-as-a-Service. Customer shall
be solely responsible for all use of its Customer subscriptions and accounts. Customers shall
maintain the confidentiality of all User IDs assigned to it. User IDs may not be shared or used by
more than one user.
15. Use and Maintenance of Customer Data.
15.1 Customer Responsibilities. Customer shall have sole responsibility at all times
during the Software-as-a-Service term for the accuracy, quality and legality of all Customer Data
25
Exhibit "B"
used with and by the Software-as-a-Service. In addition, Customer shall at all times during the
Software-as-a-Service term be responsible for maintaining the confidentiality of all such Customer
Data under its control. Customer acknowledges and agrees that Customer has implemented best
practices within its industry to safeguard the security and privacy of Customer Data and in
compliance with legal and regulatory requirements in the jurisdictions in which it operates and
that Customer will continue to do so throughout the Software-as-a-Service term. During the
Software-as-a-Service term, Customer will notify ltron of any breach of Customer Data and of any
breach of Customer's security safeguards affecting or potentially affecting the confidentiality,
privacy, or security of Customer's Customer Data used in connection with or by the Software-as-
a-Service.
15.2 Customer Warranty. Customer represents and warrants that the Customer Data
does not and will not: (i) infringe or violate the rights of any third-party or any law or regulation, (ii)
violate any privacy or data protection laws or regulations, or (iii) contain any virus or programming
routine that has the effect of damaging, surreptitiously intercepting, or expropriating any system,
data, or personal information. ltron may take any remedial action at its sole discretion to address
any violation of this warranty, but is under no obligation to review Customer Data for accuracy,
legality or potential liability, or otherwise take any action with regard to Customer Data under
Customer's control. Customer agrees to indemnify and hold harmless ltron for any third-party
claim, loss or damage in connection with the Customer Data or Customer's breach of its
obligations under this warranty.
16. Security. With respect to Customer Data that ltron may have access to, transport,
process, or use in providing Software-as-a-Service to Customer, ltron shall maintain a formal
security program during the Software-as-a-Service term in accordance with ltron policies
designed to: (i) protect the security and integrity of Customer Data; (ii) protect against threats or
hazards to the security of the Software-as-a-Service, and to (iii) prevent unauthorized access to
the Software-as-a-Service by third-parties and ltron personnel. It is Customer's obligation and
responsibility to ensure that its use of Software-as-a-Service comply with any and all laws and
regulations applicable to Customer, including without limitation, all such laws and regulations
governing the privacy and security of Customer Data.
17. Suspension or Restriction of Service; Maintenance.
17.1 Service Suspension or Restriction. To protect the integrity and functionality of
the Software-as-a-Service for the benefit of all ltron users and customers, ltron may suspend or
restrict all or part of the Software-as-a-Service at any time until further notice to the Customer and
provide notice of such suspension or restriction to Customer as soon as reasonably practicable if
(i) the provision of the Software-as-a-Service would cause ltron to be in breach of any applicable
law; or (ii) ltron reasonably determines that the Software-as-a-Service must be suspended in
order for ltron to (a) carry out planned maintenance, repair or upgrading of any equipment or
facility forming part of the Software-as-a-Service, on at least ten (1 0) days' notice; or (b) carry out
unplanned maintenance, repair or upgrading of any equipment or facility forming part of the
Software-as-a-Service with as much notice as is reasonably practicable; or (c) prevent material
harm to the Software-as-a-Service arising from any activity originating from or through Customer's
use of the Software-as-a-Service that could disrupt the use of or interfere with the ability of others
to effectively use the Software-as-a-Service or any connected network, system, service, or
equipment, including without limitation, Customer's noncompliance with this Software-as-a-
Service Addendum.
17.2 Planned Maintenance. Planned maintenance whenever reasonably practicable
will be performed during off-business hours between 12:00 p.m. to 6:00 a.m., with as little
26
Exhibit "8"
disruption to Customer's use of the Software-as-a-Service as possible, and unplanned
maintenance, whenever reasonably practicable, shall also be performed during off-business
hours between 6:00 p.m. and 6:00 a.m.
17.3 Minimum Disruption. If the Software-as-a-Service is suspended or restricted,
ltron will use reasonable efforts to ensure that there is minimum disruption to the Software-as-a-
Service and shall use its commercially reasonable efforts to promptly reinstate it after the
condition has been alleviated, provided that if ltron reasonably determines that such action was
necessitated by Customer's fault or breach, and such fault or breach represents an incurable,
continuing and material risk to the integrity of the Software-as-a-Service, then ltron may
permanently suspend or restrict all or part of the Software-as-a-Service and provide notice of
same to Customer as soon as reasonably practicable. Without limiting the exclusions or limitations
of liability in the Agreement, ltron shall not be liable to Company or to any third person for any
loss resulting from or in connection with a suspension, withdrawal or restriction of the Software-
as-a-Service under this Section. The exercise of the ltron's right to suspend the Software-as-a-
Service under this Section is without prejudice to any other remedy available to ltron under this
Software-as-a-Service Addendum and the Agreement and does not constitute a waiver of ltron's
right to terminate this Software-as-a-Service Addendum.
[Service Level Attachment Follows]
27