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PR 15493: ESRI, INC. - PURCHASE GIS SOFTWARE
Interoffice MEMORANDUM To: Mayor, City Council, and City Manager From: Valecia R. Tizeno, First Assistant City Attorney Date: September 4, 2009 Subject: P. R. No. 15493; Council Meeting September 8, 2009 Attached is P. R. No. of GIS Software from ESRI, amount of $53,880, Account No 15493 authorizing the purchase Inc., of Redlands, CA in the . 001-1202-531.57-00. VRT:gt Attachment z.pri5493_memo P. R. No. 15493 09/04/2009 vrt RESOLIITION NO. A RESOLUTION AUTHORIZING THE PURCHASE OF GIS SOFTWARB FROM ESRI, INC., OF REDLANDS, CA IN THE AMOUNT OF $53,680, ACCOUNT N0. 001-1202- 531.57-00. WHEREAS, the Neighborhood Stabilization Program requires a great deal of information from the Jefferson County Appraisal District (JCAD) and other entities; and WHEREAS, the most efficient means of obtaining this information is in a digital format that is compatible with the JCAD systems; and WHEREAS, ERSI, Inc. is the graphical information system (GIS) provider for the Appraisal District, as well as Jefferson County, Drainage District 7, and the City of Beaumont; and WHEREAS, obtaining this software will greatly enhance our ability to retrieve and cross-reference data and provide timely information to our citizens, industry, and developers; and WHEREAS, ESRI, Inc. has submitted a quotation under the Texas Department of Information Resources (TX DIR) Contract DIR-SDD-492, attached hereto as Exhibit "A", for the purchase and installation of the GIS software in the $42,480; and WHEREAS, ESRI, Inc., has also provided a quotation in the amount of $11,400 for a maintenance agreement for the second year. z.pr15493 NOW THEREFORE, BE IT RSSOLVSD BY THE CITY COIINCIL OF THS CITY OF PORT ARTHIIR: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Council hereby authorizes the purchase and installation of GIS Software, as delineated in Exhibit "A", and further authorizes the City Manager to enter into a maintenance agreement, as delineated in Exhibit "B" for a total cost of $53,880. Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of A.D., 2009, at a Meeting of the City Council of the City of Port Arthur, by the following vote: AYES: Mayor Councilmembers NOES: MAYOR z.pt15493 ATTEST: CITY SECRETARY APPROVED AS TO FORM: CITY ATTO 'Y ~ ~ ~,h~~J APPROVED FOR ADMINISTRATION: CITY MANAGER APPROVED AS TO THE AVAILAHILITY OF FIIND3: DIRECTOR OF FIN CE z.pr15493 EXHIBIT "A" Quotation # 20352799 Date: August 20, 2009 ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. Customer # 216405 Contract # 2006MPA4409 ESRI, Inc. CITY OF PORT ARTHUR 380 New York Street COMMUNITY DEVELOPMENT Redlands, CA 92373-8100 444 4TH ST STE 205 Phone: 909-793-2853 Fax: 909-307-3049 PORT ARTHUR, TX 77640 DUNS Number: 06-313-0175 CAGE Code: OAMS3 To expedite your order, please attach a copy of ATTENTION: Rebecca Underhill this quotation to your purchase order. PHONE: 409-983-8259 Quote is valid from: 08/20/2009 To: 11/18/2009 FAX: 409-983-8120 Material Qty Description Unit Price Total 52382 2 Arcinfo Concurrent Use License 7,315.00 14,630.00 87143 4 Arcview Concurrent Use License 2,877.00 11,508.00 112566 1 ArcGIS 9.3 with USB Key Installation Package 0.00 0.00 112568 1 Arcview 9.3 Concurrent Use with USB Key Installation Package 0.00 0.00 109065 1 ArcGIS Server Standard Enterprise for Windows Up to Four Cores License 16,342.00 16,342.00 115072 1 ArcGIS Server 9.3.1 Enterprise for Windows Installation Package 0.00 0.00 Item Total: 42,480.00 Subtotal: 42,480.00 Sales Tax: 0.00 Estimated Shipping 8 Handling(2 Day Delivery) : 0.00 Contract Pricing Adjust: 0.00 Total: $42,480.00 TX DIR pricing Contract# DIR-SDD-492 The following items are optional items listed for your convenience. These items are not included in the totals of this quotation. Material Qty Description Unit Price Total 109216 1 ArcGIS Server Standard Enterprise Up to Four Cores Maintenance (year 2) 5,000.00 5,000.00 52384 1 Arclnfo Concurrent Use Primary Maintenance(year 2) 3,000.00 3,000.00 52385 1 Arclnfo Concurrent Use Secondary Maintenance(year 2) 1,200.00 1,200.00 87194 1 Arcview Concurrent Use Primary Maintenance(year 2) 700.00 700.00 87195 3 Arcview Concurrent Use Secondary Maintenance(year2) 500.00 1,500.00 Quoted By: Oliver D'Silva, (909) 793-2853 x2044 Account Manager. Sarah Powers Email: odsilva@esri.com Email: spowers@esri.com Acceptance of this quotation is limited to the ESRI License Agreement and the t]uolalion Terms and Conddions This Quotation is made in confidence for your review. It may not be disdosed to third parties, except as required by law. if sending remittance, please address to: ESRI, File No. 54630, Los Angeles, Ca 90074-4630 D'SILVAO This offer is limited to the terms and conditions incorporated antl attached herein. ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. ESRI, Inc. 380 New York Street Redlands, CA 92373-8100 Phone:909-793-2853 Fax:909~07-3049 DUNS Number: 06-313175 CAGE Code: OAMS3 To expedite your order, please attach a copy of this quotation to your purchase order. Quote is valid from: 08/20/2009 To: 11/18/2009 Quotation # 20352799 Date: August 20, 2009 Customer # 216405 Contract # 2006MPA4409 CITY OF PORT ARTHUR COMMUNITY DEVELOPMENT 444 4TH ST STE 205 PORT ARTHUR, TX 77640 ATTENTION: Rebecca Underhill PHONE: 409-983-8259 FAX: 409-983-8120 BY SIGNING BELOW YOU ARE INDICATING THAT YOU ARE AUTHORIZED TO OBLIGATE FUNDS FOR YOUR ORGANIZATION. DO NOT USE THIS FORM FOR ORDER ACTNATION IF YOUR ORGANIZATION WILL NOT HONOR AND PAY AN INVOICE THAT HAS BEEN ISSUED AT YOUR DIREOTON WITHOUT ADDITONAL AUTHORIZING PAPERWORK To expedite your order, either attach a copy of this quotation to your purchase order when h is remitted to ESRI, or sign below and return this quotation to indicate your acceptance. ESRI's address and fax number are provided an the first page of this quotation. H you have made ANY alterations to the line items included in this quote and have chosen to sign the quote to indicate your acceptance, you must fax ESRI the signed quote in its entirety in order for the quote to be accepted. You will be contacted by your Customer Service Representative if additional information is required to complete your request If your organrsation is a US Federal, state, or local government agenry; an educational facility; or a company that will not pay an invoice vrithout having issued a formal purchase order, a signed quotation will not be accepted unless it is accompanied by your purchase order. If you choose to discontinue your maintenance, you will become ineligible for maintenance benefits and services. All maintenance fees from the date of discontinuation will be due and payable if you decide to reactivate your maintenance coverage at a later date. Acceptance of this quotation is limited to the ESRI license agreement, quotation terms and conditions, and am/ other ESRI terms and conditions included with this quotation. Any additional or different terms in any purchase order are deemed rejected unless expressly accepted in writing and signed by ESRI. Notwithstanding, if the purchase order is placed under an existing signed agreement (e.g., Master Purchase Agreement), or under the GSA Federal Supply Schedule, then the purchase order shall itlentify such agreement on the fate of the order and the terms and conditions of such agreement shall govern the subject matter of the purchase order. By signing below, you are authorizing ESRI to issue an invoice for the items included in the above quote in the amount of: § plus sales taxes if applicable. (Note: Shipping costs are subject to change.) Please check one of the fallowing: _ I agree to pay any applicable sales tax. _ I am tax exempt, please contact me if exempt information is not currentty on file with ESRI. Signature of Authorized Representative Date Name (Please Print) Title The quotaean iMartnetion is prepdHary ark may not be espied or rNeasetl other than for dre express puryose of rystem sekdion and purNasrJltcense. Tnis infoima6on may rest be given to e,aske padies a usetl far any other purpasewghoN wnaent flan Enwmmeraal Systems Research InsdWle. Inc (ESRq. My estimated axles aM/or use lax regeGeO on this quote has been ralwlatetl az of the tlate of atls qu,Nadon and is merely provided as a convenience (a yaa orgartlzabon's budgetary purposes. ESRI reserves Ne fight to adjust and cdlecl sales andlor use tax at the a,:Wel date of invoidng. a your organization is tax exempt a pays state tax direNy. Nen prior to irnoitlng, ywr ontlaazafion mart provide ESRI vnN a espy of a wrteM taz exemption certificate issued by your state's [axing auNOnry for the gven judstliction. I Quoted By: Oliver D'Silva, (909) 793-2853 x2044 Account Manager: Sarah Powers I Email: odsilva@esri.com Email: spowers@esri.com Acceptance of this quotation is limited to the ESRI License Agreement and the I]uotation Terms and Condtions This Quotation is made in confidence far your review. It may not be disclosed to third parties, except as required by law. If sending remittance please address to: ESRI, File No. 54630, Los Angeles, Ca 90074-4630 D'SILVAO This offer is limited to the terms and conditions incorporated and attached herein. EXHIBIT ~~B" ^ ~ ESRI, 380 New Vark St., Redlands, CA 92373-8100 USA • TEL 909-793-2883 • FAX 909-7915953 IMPORTANT-READ CAREFULLY UNLESS SUPERSEDED BY A SIGNED LICENSE AGREEMENT BETWEEN YOU AND ESRI, ESRI IS WILLING TO LICENSE SOFTWARE, DATA, WEB SERVICES, OR DOCUMEN"I'ATION TO YOU ONZY IF YOU ACCEPT ALL TERMS AND CONDITIONS CONTAINED IN THIS LICENSE AGREEMENT. PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. SOFTWARE, DATA, OR DOCUMENTATION WILL NOT BEGIN DOWNLOADING TO OR INSTALL ONTO YOUR COMPUTER SYSTEM UNTIL YOU HAVE MANIFESTED YOUR ASSENT TO THE TERMS AND CONDITIONS OF THE LICENSE AGREEMENT BY CLICKNG "I accept the License Agreement" BELOW. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS AS STATED, THEN ESRI IS UNWII.LING TO LICENSE SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION TO YOU, AND YOU SHOULD CLICK "I do not accept the License Agreement" BELOW AND RETURN THE PACKAGE TO ESRI OR ITS AUTHORIZED DISTRIBUTOR. SEE http://www.esri.com/legal FOR UPDATED TERMS THAT MAY APPLY TO FUTURE VERSIONS OF SOFTWARE, DATA, WEB SERVICES, AND DOCUMENTATTON. LICENSE AGREEMENT (E204 5/OS) This License Agreement ("License Agreement") is between you ("Licensee") and Environmental Systems Research Institute, Inc. ("ESRI"), a Califomia corporation with a place of business at 380 New York Street, Redlands, Califomia 92373-8100 USA. ARTICLE 1-DEFINITIONS Definitions. The teens used are defined as follows: a. "Beta" means any alpha, beta, or prerelease Software, Data, Documentation, or Web Services. b. "Data" means any ESRI or third-party digital dataset(s) including, but not limited to, geographic vector data coordinates, raster, reports, or associated tabulaz attributes, licensed under this License Agreement. c. "Documentation" means all printed and digital materials including, but not limited to, help files, user reference documentation, training documentation, or technical information and briefings. d. "Samples" means sample code, sample applications, add-ons, or sample extensions of Sofhvare, Data, Documentation, or Web Services. e. "Software" means all or any portion of ESRI's proprietary software technology accessed or downloaded from an authorized ESRI Web site or delivered on any media in any forma[ including backups, updates, service packs, patches, ho[ fixes, or permitted merged copies. f "Term License" means licenses provided for use in a limited time period or on a subscription or transaction basis. g. "Web Services" means software services or ESRI or third-party data provided by ESRI that perform geographic information system (GIS) functions, tasks, or data services and are accessed over the Internet. ARTICLE 2-INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP Software, Data, Web Services, and Documentation are licensed and not sold. ESRI and its licensors own Software, Data, Web Services, and Documentation, which are protected by United States and applicable international laws, treaties, and conventions regarding intellectual property and proprietary rights including trade secrets. Licensee agrees to use reasonable means to protect Software, Data, Web Services, and Documentation from unauthorized use, reproduction, distribution, or publication. ESRI and its third-party licensors reserve all rights not specifically granted in this License Agreement including the right to change and improve Web Services. E204 5/O8 Page 1 of 6 ARTICLE 3-GRANT OF LICENSE 3.1 Grant of License. Subject to the terms of this License Agreement, ESRI grants to Licensee a personal, nonexclusive, nontransferable license solely to a. Use the type and number of copies of Software, Data, and Documentation and access Web Services (i) for which the applicable license fees have been paid, (ii) for Licensee's own intemal use, and (iii) in accordance with Exhibit 1 and the licensed configuration on file as authorized by ESRI or its authorized distributor. b. Access and use any secure ESRI Web site resources made available to Licensee for Licensee's own intemal use, provided that Licensee follows ESRI's terms of use policy specified therein. All password or controlled access information provided by ESRI or its authorized distributor shall be treated as ESRI confidential information. 3.2 Bela License. Licensee may be accepted into a current Beta Testing Program. a. If accepted into the Beta Testing Program, ESRI will provide to Licensee access to Beta and will grant Licensee a personal, nonexclusive, nontransferable, royalty-free license to use Beta at the authorized and identified test sites solely for the purpose of testing Beta as delivered, in accordance with the Beta Testing Program guidelines and the terms of this License Agreement. This grant of license is effective from the date accepted into the program or date of receipt of any Beta until the date of the commercial release of Software from ESRI Customer Service or the date of termination of the Beta Testing Program for the specific Beta, whichever is sooner. b. Licensee agrees to provide suggestions or comments regazding performance, usability or effectiveness, bug reports, test reports, or other feedback (collectively, "Feedback") to ESRI with respect to Beta ESRI retains title m such comments and may freely use, disclose, reproduce, license, distribute, and otherwise commercialize any Feedback. c. Bela and Feedback contain confidential information and trade secrets that are proprietary to ESRI. Licensee agrees m use commercially reasonable means (at least as great as those used by Licensee for its own confidential information) to maintain the integrity, confidentiality, and ESRI proprietary rights in Beta and Feedback. d. Beta is subject to change prior to its commercial release or may never be commercially released. Licensee acknowledges that Beta is not suitable or licensed for full use in any production system and accepts all responsibility for use and any results generated. 3.3 Evaluation License. ESRI may from time to time offer Tenn License(s) for Software, Data, Web Services, or Documentation for Licensee's evaluation only. 3.4 Consultant or Contractor Access. Subject to Section 3.1, ESRI grants Licensee the right to provide access to and use of Software, Data, Web Services, or Documentation to any consultant or contractor of Licensee exclusively for the benefit of Licensee. Licensee shall be solely responsible for compliance by wnsultants and contractors with this License Agreement. Access to or use of Software, Data, Web Services, and Documentation by consultants or contractors not exclusively for the benefit of Licensee is prohibited. 3.5 Educational Use License. If Licensee has been qualified by ESRI or its authorized distributor to participate in an educational program, Licensee agrees [o use Software, Data, Web Services, and Documentation solely for educational, reseazch, and academic purposes that are nonwmmercial in nature. Licensee shall not use Software, Data, W eb Services, and Documentation for any profit-generating activities. ARTICLE 4-SCOPE OF USE 4.1 Permitted Uses a. Licensee may install and store Softwaze, Data, and Documentation on electronic storage device(s). b. Licensee may make one (1) copy of Software, Data, and Documentation for archival purposes. Licensee may make routine computer backups. c. Licensee may customize Softwaze using any (i) macro or scripting language, (ii) published application programming interface (API), or (iii) source or object code libraries, but only to the extent that such customization is described in Documentation. d. Licensee may use, copy, or prepare derivative works of Documentation supplied in digital format and thereafter reproduce, display, and redistribute the customized documentation only for Licensee's own intemal use. Portion(s) of Documentation supplied in digital format merged with other softwaze and printed or digital documentation are subject to [his License Agreement. Licensee shall include the following copyright attribution notice acknowledging the proprietary Page 2 of 6 E204 5/OS rights of ESRI and its licensors: "Portions of this document include intellectual property of ESRI and its licensors and are used herein under license. Copyright ©[Insert the actual copyright date(s) from the source materials] ESRI and its licensors. All rights reserved." 4.2 Uses Not Permitted a. Except as provided herein, Licensee shall not sell, rent, lease, sublicense, lend, assign, or time-share Software, Data, Web Services, or Documentation. Licensee shall not act as a service bureau or commercial application service provider (ASP) that allows third-party access to Software, Data, Web Services, and Documentation. A commercial ASP means a Licensee who uses Software, Data, Web Services, or Documentation for a site or service and operates the site or the service for a profit or generates revenue by charging for access to the site or service. b. Licensee shall not redistribute Software, Data, or Web Services to unauthorized third parties, in whole or in part, including, but not limited to, extensions, components, or DLLs without [he prior written approval of ESRI. c. Licensee shall not reverse engineer, decompile, or disassemble Software, Data, Web Services, or Documentation except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction. d. Except to the extent that applicable law prohibits this restriction, Licensee shall not make any attempt to circumvent the technological measure(s) that controls access to or use of Software, Data, Web Services, and Documentation. e. Licensee shall not redistribute Software registration number/license authoriation file(s), developer license file(s), or Web Services access codes to unauthorized third parties without the prior approval of ESRI. f. Licensee shall not use Software or Web Services to transfer or exchange any material where such transfer or exchange is prohibited by intellectual property laws or any other applicable laws. g. Licensee shall not remove or obscure any ESRI or its licensors' patent, copyright, trademazk, or proprietary rights notices contained in or at£xed to Software, Data, Web Services, or Documentation. h. Licensee shall not unbundle individual or component parts of Software or Data for independent use. ARTICLE 5-TERM AND TERMINATION This License Agreement is effective upon acceptance. This License Agreement and any licenses granted hereunder shall continue until (i) such time [hat Licensee elects in writing to discontinue use of Software, Data, Web Services, or Documentation and terminates the license; (ii) expiration of a Term License; or (iii) either party terminates the license for a material breach that is not cured within ten (] 0) days of written notice to the other party, except that termination is immediate for a material breach of a nature that is impossible to cure. Upon termination of a license, Licensee shall (i) cease access and use of Web Services and clear Web Services client-side data cache and (ii) uninstall, remove, and destroy all Software, Data, and Documentation and any whole or partial copies, modifications, or merged portions in any form and execute and deliver evidence of such actions to ESRI or its authorized distributor. ARTICLE 6-LIMITED WARRANTIES AND DISCLAIMERS 6.1 Limited Warranties. Except as otherwise provided in this Article 6, ESRI warrants that (i) the unmodified Software will substantially conform to the published Documentation and (ii) media on which [he Software, Data, and Documentation is provided will be free from defects in materials and workmanship under normal use and service for a period of ninety (90) days from the date of receipt. 6.2 Data and Web Services Disclaimer. Data and Web Services may contain some nonconformities, defects, errors, or omissions. THE DATA AND WEB SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. Without limiting the generality of the preceding sentence, ESRI and its licensors do not warrant that Da[a and Web Services will meet Licensee's needs or expectations, that the use of Data and Web Services will be uninterrupted, or that all nonconformities can or will be corrected. ESRI and its licensors are not inviting reliance on Data or Web Services, and Licensee should always verify actual Data or Web Services. 6.3 Special Disclaimer. SAMPLES, HOT FIXES, EVALUATION SOFTWARE, AND BETA ARE DELIVERED "AS IS" WITHOUT WARRANTY OF ANY KIND. LICENSEE ASSUMES ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE SAMPLES, HOT FIXES, EVALUATION SOFTWARE, AND BETA. 6.4 Internet Disclaimer. BOTH PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS AND THAT (i) THE INTERNET IS NOT A SECURE INFRASTRUCTURE, (ii) NEITHER PARTY HAS CONTROL OVER THE INTERNET, AND (iii) NEITHER PARTY IS LIABLE FOR DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE DISCONTINUANCE OF Page 3 of 6 E204 5/08 OPERATION OF ANY PORTION OF THE INTEINET OR POSSIBLE REGULATION OF THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE WEB SERVICE. 6.5 General Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, ESRI DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE TiMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ESRI DOES NOT WARRANT AND DISCLAIMS THAT SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION WILL MEET LICENSEE'S NEEDS; THAT LICENSEE'S OPERATION OF THE SAME WILL BE UNINTERRUPTED, ERROR-FREE, FAULT-TOLERANT, OR FAII.-SAFE; OR THAT ALL NONCONFORMITIES CAN OR W[LL BE CORRECTED. SOFTWARE, DATA, WEB SERVICES, AND DOCUMENTATION ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS THAT MAY LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL PROPERTY/ENVDiONMENTAL DAMAGE. ANY SUCH USE SHALL BE AT LICENSEE'S OWN RISK AND COST. 6.6 Exclusive Remedy. Licensee's exclusive remedy and ESRI's entire liability for breach of the limited warranties set forth in this Article 6 shall be limited, at ESRI's sole discretion, to (i) replacement of any defective media; (ii) repair, correction, or a workaround for Sotiwaze subject to the ESRI Support Services Policy; or (iii) remm of the license fees paid by Licensee for Software or Documentation that does not meet ESRPs limited warranty, provided that Licensee uninstalls, removes, and desVOys all copies of Software or Documentation and executes and delivers evidence of such actions to ESRI or its authorized distributor. ARTICLE 7-LIMITATION OF LIABILITY 7.1 Disclaimer of Certain Types of Liability. ESRI AND ITS LICENSORS SHALL NOT BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS, LOST SALES, OR BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS COMMITMENTS; LOSS OF ANY GOODWILL; OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT OR USE OF SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION, HOWEVER CAUSED ON ANY THEORY OF LIABILITY, WHETHER OR NOT ESRI OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBII.ITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 7.2 General Limitation of Liability. EXCEPT AS PROVIDED IN ARTICLE 8-INFRINGEMENT INDEMNITY, ESRI'S TOTAL CUMULATIVE LLABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY LICENSEE FOR SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION PURSUANT TO THIS LICENSE AGREEMENT. 73 Applicability of Disclaimers and Limitations. Licensee agrees that the limitations of liability and disclaimers set forth in this License Agreement will apply regardless of whether Licensee has accepted Software, Data, Web Services, or Documentation or any other product or service delivered by ESRI. The parties agree that ESRI has set its prices and entered into this License Agreement in reliance on [he disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ARTICLE g-INFRINGEMENT INDEMNITY 8.1 ESRI shall defend, indemnify, and hold harmless Licensee from and against any loss, liability, cost, or expense, including reasonable attorneys' fees, which may be incurred by Licensee against any claims, actions, or demands by a third party alleging that Software infringes a U.S. patent, copyright, or trademark, provided a. Licensee promptly notifies ESRI in writing of the claim; b. Licensee provides documents clearly describing the allegations of infringement; c. ESRI has sole control of the defense of any actions and negotiations related to the defense or settlement of any claim; and Page 4 of 6 E204 5/OS d. Licensee cooperates fully in the defense of the claim. 8.2 If Softwaze is found to infringe a U.S. patent, copyright, or trademark, ESRI, at its own expense, may either (i) obtain rights for Licensee [o continue using Software or (ii) modify the allegedly infringing elements of Software while maintaining substantially similar software functionality or data informational content. If neither alternative is commercially reasonable, the infringing item(s) shall be returned to ESRI, the license shall terminate, and Licensee shall uninstall the infringing items. ESRI's entire liability shall then be to indemnify Licensee pursuant to Section 8.1 and [o refund license fees paid by Licensee for the infringing item(s), prorated on a five (~}year, straight-line depreciation basis beginning from the initial date of delivery. 8.3 ESRI shall have no obligation to defend Licensee or to pay any resulting costs, damages, or attorneys' fees for any claims or demands alleging direct or contributory infringement of Software by (i) the combination of of integration with a product, process, or system not supplied by ESRI; (ii) material alteration by anyone other than ESRI or contractors acting on behalf of ESRI; (iii) use after Licensee has been notified of possible infringement; or (iv) use after modifications are provided or a return is ordered by ESRI under Section 8.2. 8.4 In no event shall the indemnification set forth in this Article 8 apply to any Samples, hot fixes, Beta, or evaluation software delivered hereunder. THE FOREGOING STATES THE ENTIRE OBLIGATION OF ESRI WITH RESPECT TO INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. ARTICLE 9-GENERAL PROVISIONS 9.1 Export Control Regulations. Licensee expressly acknowledges and agrees [hat Licensee shall not export, reexport, transfer, or release Software, Data, Web Services, or Documentation, in whole or in part, to (i) any U.S. embargoed country (or to a national or resident of any U.S. embargoed country); (ii) any person on the U.S. Treasury Department's list of Specially Designated Nationals; (iii) any person or entity on the U.S. Commerce Departtnent's Table of Denial Orders; or (iv) any person or entity where such export, reexport, or provision violates any U.S. export control laws or regulations including, but not limited to, the terms of any export license or licensing provision and any amendments and supplemental additions to U.S. export laws as [hey may occur from time to time. 9.2 Taxes and Fees, Shipping Charges. License fees quoted to Licensee are exclusive of any and all taxes or fees, including, but not limited to, sales tax, use tax, value-added tax (VAT), customs, duties, or tariffs, and shipping and handling charges. 9.3 No Implied Waivers. The failure of either party to enforce any provision of this License Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce [hat or any other provision. 9.4 Severability. The parties agree that if any provision of [his License Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make the intent of the language enforceable. 9.5 Successor and Assigns. Licensee shall not assign, sublicense, or transfer Licensee's rights or delegate its obligations under this License Agreement without ESRI's prior written consent, and any attempt to do so without consent shall be void. This License Agreement shall be binding upon the respective successors and assigns of the parties [o this License Agreement. Notwithstanding, a government contractor that has acquired Software, Data, Web Services, or Documentation under contrnct to the government may assign this License Agreement to its government customer upon written notice to ESRI, provided the government customer assents to the terms of this License Agreement. 9.6 Survival of Terms. The provisions of Articles 2, 5, 6, 7, 8, and 9 of [his License Agreement shall survive the expiration or termination of this License Agreement. 9.7 Equitable Relief. Licensee agrees that any breach of this License Agreement by Licensee may cause irreparable damage and [hat, in the event of such breach, in addition to any and al] remedies at law, ESRI shall have the right to seek an injunction, specific performance, or other equitable relief in any court of wmpetent jurisdiction without the requirement of posting a bond or undertaking or proving injury as a condition for relief. 9.8 Government Licensee. Software, Data, Web Services, and Documentation are commercial computer software, commercial data, commercial computer software documentation, and commercial Web Services. This License Agreement Page 5 of 6 E204 5/OS contains ESRI's commercial license temts and conditions for such items. The commercial license rights in this License Agreement strictly govem Licensee's use, reproduction, or disclosure of Software, Data, Web Services, and Documentation. No other license terms or conditions shall apply unless expressly agreed in writing by ESRI and Licensee. ESRI Software source code is unpublished, and all rights to Software, Data, Web Services, and Documentation are reserved under copyright laws of the United States. In [he event any court, arbitrator, or boazd holds [hat the Licensee has greater rights to any portion of Software, Data, Web Services, or Documentation under applicable public procurement law, such rights shall extend only to the portions affected. / 9.9 Governing Law, Arbitration ~YOI ~,~ a. Licensees in the United States ofAmerica, Its Territories, and Outlying Areas. Thi License Agreement shall be governed by and construed in acwrdance with the laws of [he State of California%without reference to conflict of laws principles, except that U.S. federal law shall govem in matters of intellectual property. Except as provided in Section 9.7, any dispute arising out of or relating to this License Agreement or the breach thereof, which cannot be settled through negotiation, shall be finally settled by afiitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator may be entered in a court of competent jurisdiction. If Licensee is a U.S. government agency, this License Agreement is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601 13), in lieu of the arbitration provisions of this clause. This License Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. b. AI/ Other Licensees. Except as provided in Section 9.7, any dispute arising out of or relating to this License Agreement or the breach thereof, which cannot be settled through negotiation, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one (1) arbitrator appointed in accordance with said rules. The language of the azbitration shall be in English. The place of the arbitration shall be at an agreed-upon location. This License Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Either party shall, at the request of the other, make available documents or witnesses relevant to the major aspects of the dispute. 9.10 Maintenance. Maintenance for qualifying Software or Data consists of updates and other benefits such as access to technical support, specified in ESRI's or its distributor's most current applicable softwaze maintenance policy. 9.11 Entire Agreement This License Agreement, including Exhibit 1, constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous license agreements, understandings, and arrangements between the parties relating to such subject matter. Additional or different terms included with an order or other document shall not be binding upon ESRI. Any modification(s) or amendment(s) to this License Agreement must be in writing and signed by each party. Page 6 of 6 E204 5/OS EXHIBIT 1 SCOPE OP USE (E300 7!096) ESRI, 380 New York Sl., Redlands, CA 92373A100 USA •TEL909-793-2853 • FAX 909-793-5953 The scope of use for the ESRI Software, Data, Web Services, and Documentation identified below is described in the applicable footnotes identified in parentheses. Desktop GIS • ArcReader (20 and 25) • ArcView (1 or 2 and 25 and 44) • ArcEditor (1 or 2 and 25, 26, and 44) • Arclnfo (2, 25, 26, and 44) • ArcGIS Desktop Extensions (7) • ArcView 3.x and Extensions (1, 7, and 17) Server GIS • ArcGIS Server and Extensions - Workgroup (either 3 or 5 and 8, 9, 25, 28, 29, 30, 32, 38, 39, 4Q, and 45) - Enterprise (either 3, 4, or 5 and 8, 9, 25, 27, 31, 38, 39, 4Q, and 45) - ArcGIS Server Geoportal Extension (either 4 or 5 and 7, 47, and 52) • ArcIMS - ArcIMS and Extensions (either 3, 4, or 5 and 8, 10, and 31) - ArcIMS ArcMap Server (either 3, 4, or 5 and 31) • Tracking Server (either 4 or 5 and 31) • ArcGIS Server Image Extension (either 3, 4, or 5 and 8, 31, and 42) - ArcGIS Server Image Extension Service Editor (t) • RouteMAP IMS (either 3, 4, or 5 and 8, 25, and 31) • ArcGIS Business Analyst Server (5, 8, 9, 21, 25, 28, 31, 39, 40, 45, and 48) • NetEngine Internet (5) • ArcGIS Business Analyst Server Developer (6, 25, 33, 35, and 51) GIS Viewers and Connectors • MapIt (11, 25, 37, 33, 35, 49, and 50) • ArcExplorer-Java and Windows Editions (20 and 25) • ArcGIS Explorer (20 and 25) • ArcGIS for AutoCAD (1, 2Q and 25) • Geoportal Clients for ArcGIS (7, 20, and 52) Business GIS • ArcGIS Business Analyst (I or 2 and 25, 45, and 48) • BusinessMAP (1 and 25) • ArcLogistics (either 1 or 2 and 25) • ArcLogistics Server (5, 8, 9, 21, 25, 28, 39, 40, and 45) • ArcLogistics Navigator (1, 25, and 46) • ArcLogistics Navigator Deployments (1, 15, and 16) Cartographic Production • Maplex (1) • Production Line Tool Set (PETS) for ArcGIS, GIS Data Reviewer, Map Production System-Atlas, Job Tracking for ArcGIS (JTX) (either I or 2), Job Tracking for ArcGIS Server (either 4 or 5 and 7) Mobile GIS • ArcPad (1, 12, 13, and 25) • ArcPad Application Builder (1 and 25) • ArcGIS Mobile Deployments (1, 15, 16, and 25) Developer GIS • ESRI DeveloperNetwork (EDN) Softwaze, Web Services, and Data (6, 7, 24, 25, 26, 33, 34, 35, and 36) • ArcGIS Engine Developer Kit and Exensions (1 and 14, I5, 22, 25, 26, and 43) • ArcGIS Engine Runtime and Extensions (1, 15, 22, 25, and 26) • MapObjects-Windows Edition (I, 14, 15, 16, and 18) • MapObjects-Java Edition (1, 5, 8, I5, 18, and 19) • MapObjects LT (1, 14, and 16) • NetEngine (1, 5, and 15) Web Services • ArcG[S Online (6, 25, 33, 34, and 35) Data • ESRI Data and Maps (either I or 5 and 23 and 37) • ESRI Data (either 1, 2, or 5 and 25 and 48) - Demographic, Consumer Spending, Market Potential, Retail Marketplace, Business, Traffic, Shopping Center, Cable Boundaries, Banking, and Crime • Tapestry Segmentation (either 1, 2, or 5 and 21 and 48) • Address Coder (either 1, 2, or 5 and 21, 22, 25, and 48) • Sourcebook•America(1 and 21) • ArcGIS Data Appliance (6, 23, 25, and 41) • StreetMap Premium (either 1, 2, 4, or 5 and 6, 23, and 25) Page 1 of 4 E300 7/096 1. "Single Use License." Licensee may permit a single authorized end user to install and use the Software, Data, and Documentation on a single computer far use by that end user on the computer on which the Software is installed. Remote access is not permitted. Licensee may permit the single authorized end user to make a second copy for end user's exclusive use on a portable computer as long as only one (1) copy of the Software, Data, and Documentation is in use at any one (I) time. 2. "Concurrent Use License." Licensee may install and use the Software, Data, and Documentation on computer(s) on a network, but the number of simultaneous users may not exceed the number of licenses acquired. 3. "Development Server License." Licensee may install and use the Softwaze on a single computer to design and build applications that interface with or utilize server Software as described in the Documentation. 4. "Staging Server License." In addition to the Development Server License rights, Licensee may use and install the Software for the following purposes: user acceptance testing, performance testing, load testing of other third-party software, staging new commercial data updates, and training activities. 5. "Deployment Server License." In addition to the Staging Server License rights, Licensee may install and use the Softwaze or Data to provide services to multiple users on the same or other computer(s). 6. Provided only as a Term License. 7. Extensions to Software programs follow the same scope of use as that granted for the cortesponding Software programs. 8. The administration tools for the Software may be copied and redistributed throughout Licensee's organization. 9. User-developed ArcGIS Server administration tools may be copied throughout Licensee's organization, but the ArcCatalog application (found in ArcGIS Desktop) may not be copied. 10. The ArcIMS license includes the right to deploy MapObjects-Windows Edition applications on the Intemet or Intranet. Licensee shall no[ develop client/server solutions with the AroIMS Java Archive (JAR) files without a license for the MapObjec[s-Java Edition Developer Kit. 11. The Software is licensed per server. The licensed server is the server on which the Spatial Data Service is installed. Licensee may install and use the Software to provide services to multiple users on the same or other computer(s). 12. ArcPad SOFTWARE IS NOT LICENSED FOR NAVIGATIONAL USE. 13. "Dual Use License" means the Software may be installed on a desktop computer and used simultaneously with either a personal digital assistant (PDA) or handheld mobile computer as long as the Software is only used by a single individual at any one (1) time. 14. Developers must include the following attribution with any deployed MapObjects application: "Portions of this computer program are owned by LizardTech, Inc., and are Copyright ~ 1995-2002 LizazdTech, Inc., and/or the University of California. All rights reserved. U.S. Patent No. 5,710,835." I5. Deployment licenses for desktop or Intemet application(s) may be subject to payment of additional license fees. 16. Licensee may deliver applications to its sublicensee(s) provided Licensee uses a written sublicense agreement that protects ESRI's rights in its Software, Data, Web Services, and Documentation to the same extent as the ESRI License Agreement including, but not limited to, the following terms: a. Sublicensee may not reverse engineer, decompile, or disassemble the ESRI Software, Data, Web Services, or Documentation, except to the extent permitted by applicable law; copy for commercial use; transfer; or assign its rights under the license grant; b. Sublicensee may not use any ESRI Software, Data, Web Services, or Documentation, in whole or in part, separate from Licensee's executable application; and c. Third-party dependent or required components are redistributable subject to permission from the owner or author. 17. Licensee may use Business Objects Crystal Reports software only with the ArcView 3.x Softwaze with which it was acquired and subject to the Crystal Reports License Agreement available on the media. Licensee may not use a software program or system to cache or queue report requests. 18. The deployment license is per application per computer. 19. The MapObjecu-Java Edition contains Java Archive files, which indicate they are authentic ESRI-certificated files when used over [he Intemet. Licensee shall not use ESRI certification or reference ESRI as a source of tmsted content in any modified MapObjec[s Java Archive files. Licensee may deploy the unmodified Java class ESRI certified libraries as an integral part of the Licensee's application(s). 20. Licensee may reproduce and deploy the Software provided all the following occur: (a) The Software is reproduced and deployed in its entirety; (b) a license agreement accompanies each copy of the Software that protects the Software to the same extent as the ESRI License Agreement, and the recipient agrees to be bound by the terms and conditions of the license agreement; (c) all copyright and trademark attributions/notices are reproduced; and (d) there is no charge or fee attributable to the use of the Software. Page 2 of 4 E300 7/09B 21. Licensee shall not withhold any substantial right (e.g., extension of credit) from any individual based solely on the individual's place of residence, as profiled in the Tapestry Segmentation system. 22. (a) ArcGIS Engine Runtime licenses shall not be used for Internet and Server development and deployment. (b) An end user must license either ArcGIS Engine Runtime Software or other ArcGIS Desktop Software (ArcView, ArcEditor, or ArcInfo) to obtain the right to run an ArcGIS Engine application on one (1) computer. (c) The ArcGIS Engine Runtime extensions shall not be used in combination with ArcGIS Desktop Software to run ArcGIS Engine applications. A single user can have multiple applications installed on one (1) computer for use only by that end user. 23. Licensee may redistribute the Data as described in the Redistribution Rights Matrix available a[ http://www.esri.com/ leeal/, in the Help system, or in supporting metadata files, subject to the specific attribution descriptions and requirements For the dataset accessed. 24. EDN Softwaze, Web Services, and Data may only be used by one (1) named developer per subscription solely for the purposes of reseazch, development, testing, and demonstration of a prototype application. EDN Software and Data may be installed on multiple computers for use by any named EDN developer. 25. Use of included third-party owned data shall be subject to the lise of Data Restrictions found at htta://www.esri.com/ leeaU for the specific Data accessed. The Use of Data Restrictions may be modified by ESRI from time to time. If a modification is unacceptable to Licensee, Licensee may cancel a subscription upon written notice to ESRI, or discontinue use of the Data or Web Services, as applicable. If Licensee continues to use the Data or Web Services, Licensee will be deemed to have accepted the modification. 26. An ArcSDE Personal Edition geodatabase is restricted to four (4) gigabytes of Licensee data 27. ArcGIS Server Web ADF Runtime Software may not be deployed independently of Licensee's ArcGIS Server Enterprise configuration. 28. Limited to ten (10) concurtent end users of non ArcGIS Server applications. This restriction includes use of ArcGIS Desktop products, ArcGIS Engine products, andthird-party applications that connect directly to any ArcGIS Server geodatabase. There are no limitations on the number of connections from Web applications. 29. Can only be used with SQL Server 2005/2008 Express. 30. Restricted to a maximum total of four (4) gigabytes of Licensee data. 31. Redundant Software installation(s) for failover operations may be implemented during the period the primary site is nonoperational. The redundant Software installation(s) shall remain dormant, except for system maintenance and updating of databases, while the primary site or any other redundant site is operational. 32. No redundant Software installation is permitted. 33. ArcGIS Online may only be utilized in conjunction with ArcGIS Desktop, ArcGIS Server (including the Web ADF), ArcGIS Mobile, ArcGIS Explorer, ArcGIS Business Analyst Server Developer, and ESRI MapIt Software, and the ArcGIS APIs (including JavaScript"", Adobe®Flex~, and Microsoft® Silverlightr'"/WPF'"'). Licensee's access and use of ArcGIS Online Standazd Services shall be subject to Licensee's consent [o the terms and conditions of ESRI Web Site Terms of Use Agreement (G-577) found at http'//www.esri.com/leeal/. ArcGIS Desktop Licensees that are current on maintenance may access and use Microsoft' Bing Maps~° subject to Licensee's consent to the terms and conditions of Bing Maps for ArcGIS Desktop Users Services Agreement (G-600) found at http:/lwww.esri.com/leeal/. 34. Licensee's organization is limited to the number of specified credits, transactions, geogrnphy, or number of users as described in the online product description. 35. Licensed end users shall not share the client-side data cache derived from ArcGIS Online with other licensed end users or third parties. 36. Licensee may not download or store resulting data or information except for results derived from using ArcWeb Services Address Manager. 37. Data provided with StreetMap USA may be used for mapping, geocoding and routing purposes but is not licensed for dynamic routing purposes. For instance, StreetMap USA may not be used [o alert a user about upcoming maneuvers (such as warning of an upcoming tum) or calculating an alternate route if a turn is missed. 38. The ArcGIS Server 3D extension included with ArcGIS Server Standard and Advanced (Workgroup or Enterprise) may only be used for generating globe data cache(s) or publishing a globe document as an ArcGIS Globe Service. No other use of the ArcGIS Server 3D extension Softwaze is permitted with ArcGIS Server Standard. The ArcGIS Server 3D extension can be used with ArcGIS Server Advanced if the additional license fees for the 3D extension have been paid. 39. Any editing functionality included with ArcGIS Server is not permitted for use with ArcGIS Server Basic (Workgroup or Enterprise). 40. Geospatial Enterprise JavaBeans (EJB) provided with ArcGIS Server (Workgroup or Enterprise) are permitted for use only with ArcGIS Server Advanced. 41. Licensee may only use Data from a single state with the Single State version of ArcGIS Data Appliance. This restriction applies [o a large-scale (i.e., scale levels below 1:100,000) street map, transportation layer, boundaries and places layer, and one (1)-meter or better resolution imagery included in the USA Collection. This restriction does not apply to the Page 3 of 4 E300 7/09B small-scale (i.e., scale levels above 1:100,000) maps provided in the World Collection, which are intended for display at global and regional scales. 42. Licensee has the right to one (1) desktop deployment of the ArcGIS Server Image extension Service Editor for every four (4) cores of ArcGIS Server Image extension that is licensed. Additional Service Editor desktop deployments can be licensed for an additional fee. 43. Licensee may develop an unlimited number of applications on a single computer and deliver the applications to end users with or without the Engine Runtime Software. 44. For any operating system environment in which Licensee runs instances of the Concurtent Use license management software, Licensee may run up to the same number of passive failover instances of the Concurzent Use license management software in a separate operating system environment for temporazy failover support. 45. Data licensed with ArcGIS Business Analyst and ArcGIS Business Analyst Server are restricted to use with the respective Business Analyst extension and are no[ for general use with ArcGIS Desktop or ArcGIS Server Software. 46. Licensee should no[ follow any route suggestions that appear to be hazardous, unsafe, or illegal. Licensee assumes all risk of using this navigation Software. 47. Licensee may only use [he Softwaze in conjunction with a minimum of ArcGIS Server Standard Enterprise. 48. Licensee may include reports and maps created from the Software or Data in hard-copy or readonly formats for presentation packages or marketing studies for subsidiaries and customers. The value of the ESRI reports and maps must be less than twenty percent (20%) of Licensee's total value of the presentation package or marketing study. Full, complete, stand-alone reports or maps created from the Software or Data and not part of a presentation package or marketing study cannot be resold, sublicensed, or otherwise transferred without prior, written permission of ESRI. Licensee's third-party customer may only receive reports and maps generated by Licensee and may only use the maps and reports received from Licensee for internal purposes. In no case shall Licensee redistribute the Data in digital formats. 49. ESRI MapIt Silverligh[ W eb or WPF applications may not be deployed independent of Licensee's Maplt deployment configuration. 50. Licensee has the right to one (1) desktop deployment of the Spatial Data Assistant for each ESRI MapIt Server License. 51. ArcGIS Business Analyst Server Developer and Data may only be installed on one (I) server per license solely for the purposes of research, development, testing, and demonstration of a prototype application. 52. Source code is [he intellectual property of ESRI. Licensee's access to and use of any source code file identified as "Software" in a README file or at htp://www.esri.com/IeeaU should be treated as a trade secret for Licensee's own intemal use only and not for further redistribution or access by unlicensed third parties. Licensee shall not modify [he Software, Documentation, Data, or source code to incorporate, embed, link, or otherwise include any code, libraries, or data licensed or distributed under an open source licensing or distribution models similar to Free Software Foundation's GNU's General Public License (GPL) or GPL-wmpliant licenses, including, without limitation, [he Artistic License (e.g., Perl), the Mozilla Public License, the Netscape Public License, and the Sun Community or Industry Standards License, that could require a user to make its proprietary source code available to a requesting third party. Page 4 of 4 E300 7/09B