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HomeMy WebLinkAboutPR 18950: ITRON INC CONTRACT P.R. NO. 18950 05/07/15 vt RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN INDIRECT SALES CONTRACT WITH ITRON, INC. , FOR THE PROVISION OF THIRD PARTY SOFTWARE TO PERFORM METER READING, ENDPOINT MAINTENANCE, AND DATA REPORTING IN AN AMOUNT NOT TO EXCEED $36, 008 .40 ANNUALLY, ACCOUNT NO. 410-1251-532 . 59-00 (FUNDS WILL BE ALLOCATED FOR THIS EXPENDITURE IN THE FY2015/2016 BUDGET) . WHEREAS, pursuant to Resolution No. 14-406, the City entered into a performance contacting agreement with Siemens Industries, Inc . , for the following projects : 1) reduction of water loss through the identification and repair of hydrant leaks, 2) large meter replacements, and 3) automatic metering system upgrades; and, WHEREAS, in order to facilitate the use of the meter replacement and system upgrade projects, it is necessary to enter into a contract for the provision of Third Party Software (Itron Cloud Services) to perform meter reading, endpoint maintenance, and the reporting of read data to the City; and, WHEREAS, Itron Cloud Services manages and controls the underlying cloud infrastructure, including network, servers, operating systems and storage; and WHEREAS, it is in the best interest of the City to enter into an agreement for the use of the software, services, and equipment from Itron, Inc . , in an amount not to exceed $36, 008 . 40 annually. s.pr18950 NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: Section 1 . That the facts and opinions in the preamble are true and correct . Section 2 . That City Council hereby authorizes the City Manager to execute an Indirect Sales Contract with Itron, Inc . , in substantially the same form as Exhibit "A" . Section 3 . That Seimens Industries, Inc . , will be responsible for payment to Itron, Inc . for the first year of the contract, and the City of Port Arthur will be responsible for the payment to Itron, Inc. for the second year and the remainder of the contract in an amount not to exceed $36, 008 .40 annually (funds will be allocated for this expenditure in the FY2015/2016 budget) . Section 4 . That a copy of the caption of this Resolution shall be spread upon the Minutes of the City Council . READ, ADOPTED, AND APPROVED, this day of 2015 AD, at a Regular Meeting of the City Council of the City of Port Arthur, Texas by the following vote : AYES : Mayor: Councilmembers : NOES : . s.pr18950 Mayor ATTEST: Sherri Bellard, City Secretary APPROVED AS TO FORM: '4 ; /l/l Val Tizeno, Ciy Attorney APPROVED FOR ADMINISTRATION: Brian 1auga , City Manager Jimmie Johnson, Ph.D. Director of Utility Operations APPROVED AS TO AVAILABILITY OF FUNDS: P6&11/;/4-e% Deborah Echols, Finance Director /t7, -./(4 (7114 (LY-4) Shawna Tubbs,-"Purchasing Manager s.pr18950 EXHIBIT "A" s.pr18950 INDIRECT SALES AGREEMENT This Indirect Sales Agreement (the "Agreement') is entered into as of- 1.30 (the "Effective Date") by and between Itron, Inc. Citron")and ("Customer'). Itron and Customer may each be referred to as a"Party"and together as the"Parties." Customer shall execute this Agreement prior to its receipt of any Itron software, services or equipment by an authorized Itron distributor (each a "Distributor"). The terms of Customer's agreement with a Distributor shall govern Customer's purchase of Itron equipment or services from a Distributor(it being understood that Distributor will pass certain Itron warranties through to Customer). The terms of this Agreement shall govern (i) any software provided by Itron, regardless of whether the order for such software is placed with a Distributor or directly with Itron, and (ii) any order of equipment or services placed directly with Itron. The Parties agree as follows: 1. Software Terms a. Definitions. "Delivery,"with respect to Software, means that Itron has either made the Software available to Distributor via electronic means or has provided the Software to a carrier on physical media for delivery to Distributor. "Documentation" means all printed or electronic materials published or otherwise that are provided to Customer and that describe or relate to the functional, operational or performance capabilities of the Software. "Endpoint" means (i) a physical device (e.g., a meter, encoder-transmitter-receiver or other measuring or monitoring device)that is the source of data used in the Software application or (ii) a virtual device created in the Software application to simulate the existence of a physical device. An example of a virtual device that is an Endpoint would include a single electricity meter that serves 10 apartment units. If the consumption data from that electricity meter was divided between the 10 units (e.g., on the basis of square footage) and used in the Software application as if that single electricity meter was actually 10 electricity meters, it would count as 10 Endpoints. Further, each account,whether active or inactive, in the application that is associated with a single physical device counts as a separate Endpoint. "Object Code" means the binary, machine-readable version of the Software. "Software" means software identified on Attachment A that is owned by Itron and any modifications, corrections, improvements or enhancements thereto provided by Itron. "Source Code"means human-readable computer programming code, associated procedural code and related documentation. "Specifications" means the applicable published Itron functional specifications for an item of Software. "Third Party Software"means software that is not owned by Itron but is identified on Attachment A as being provided by Itron. "Use" means the ability to run, execute, display and, subject to the restrictions described below, duplicate and distribute internally. "Warranty Period,"with respect to a particular item of Software, means the warranty term beginning on the warranty start date, as set forth on Attachment A. b. License Grant. Subject to the terms of this Agreement, Itron grants to Customer a nonexclusive, nontransferable, perpetual Object Code license to Use the Software and Documentation for its internal business purposes only in connection with the number of Endpoints set forth in Attachment A. c. Restrictions. As a condition to the foregoing license grant, Customer shall not(i)violate any restriction set forth on Attachment A, (ii) modify or create any derivative work from the Software, (iii)include the Software in any other software, (iv)use the Software to provide processing services to third parties or on a service bureau basis, (v) reverse assemble, decompile, reverse engineer or otherwise attempt to derive Source Code (of the underlying ideas, algorithms, structure or organization) from Software, or (vi) use the Software to process business information concerning customers derived through merger, asset acquisition or other entity combination. Except as expressly permitted in this Agreement, Customer may not copy the Software other than to make one machine readable copy for disaster recovery or archival purposes. Customer may only make copies of Documentation as reasonably necessary for the use contemplated herein. The Software and Documentation shall be considered the confidential information of Itron and,as such,shall be subject to the confidentiality provisions of this Agreement. d. Invoicing. Distributor will invoice Customer for the Software and Itron will invoice Distributor. e. Limited Software Warranty Warranty and Remedy. For the Warranty Period, Itron warrants to Customer that the Software will perform substantially in accordance with the Specifications. Itron does not warrant that the Software will operate uninterrupted or error-free. Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section shall be for Itron to repair or replace the non-conforming Software. If Itron, in its sole discretion, is unable to repair or replace non-conforming Software, Itron will refund to Customer the amount paid for such Software. Software that is repaired or replaced pursuant to this Section will be warranted for the remainder of the original warranty period or 30 days,whichever is longer. Customer's license to Software for which it has received a refund hereunder shall terminate upon its receipt of a refund. ii. Exclusions. The warranty provided in this Section shall not apply to the extent that non-compliance relates to or is the result of(i)use of the Software in combination with software, equipment or communications networks not provided by Itron, (ii) a change to the Software's operating 1 03/10/2014 environment not made or authorized by Itron, (iii)Customer's failure to install any correction or enhancement provided by Itron,(iv)viruses introduced through no fault of Itron, (v) any use of the Software not authorized by this Agreement. The warranty provided in this Section is valid only if Customer has complied with the terms of this Agreement(including paying the applicable Software license fees)and shall be void to the extent of any modification to the Software not authorized by Itron. f. Third Party Software and Documentation. Itron shall provide the Third Party Software, if any, identified on Attachment A and any related documentation. Any Third Party Software, and related documentation provided by Itron in connection with this Agreement shall be subject to a separate license agreement between the Customer and the third party software provider and will be subject to separate third party warranties, if any. Customer agrees that it will be bound by and will abide by all such third party software licensing arrangements. Customer is solely responsible for acquiring any software that is required to use the Software or Third Party Software. g. Audit. Customer will maintain accurate and detailed records as necessary to verify compliance with this Agreement. Itron may audit these records to verify compliance at any time during Customer's regular business hours after giving notice 5 business days in advance of the audit. Except as described below, Itron will bear all costs and expenses associated with the exercise of its audit rights. Any errors in payments identified will be corrected by Customer by appropriate adjustment. In the event of an underpayment of more than 5 percent, Customer will reimburse Itron the amount of the underpayment, reasonable costs associated with the audit, and interest on the overdue amount at the maximum allowable interest rate from the date the obligation accrued. h. Obligations Upon Termination for Cause. Upon a termination by Itron for cause,Customer's license to any Software and right to receive maintenance and support for such Software shall immediately terminate and Customer shall(i)delete any Software from all of its computers, (ii)immediately deliver to Itron or destroy all copies of such Software and any related Documentation and (iii) certify in writing to Itron within 10 days of any such termination that, to the best of Customer's knowledge, Customer has complied with this Section. i. Other Provisions. Customer shall not, directly or indirectly, export or transmit the Software to any country to which such export or transmission is prohibited by any applicable regulation or statute. The Parties agree that Software provided under this Agreement shall be deemed to be"goods" within the meaning of Article 2 of the Uniform Commercial Code, except when such a practice would cause an unreasonable result. The Parties agree that the Uniform Computer Information Transaction Act (or a version thereof or substantially similar law) shall not govern this Agreement. 2. Equipment Terms SUB-ITEMS a., b. AND c. BELOW APPLY ONLY TO EQUIPMENT PURCHASED BY CUSTOMER DIRECTLY FROM ITRON: a. Equipment Purchase. Customer agrees to purchase the equipment, if any, identified on Attachment A (the "Equipment") from Itron at the price(s) and in the quantities set forth thereon pursuant to the terms of this Agreement. Prices set forth on Attachment A are valid for one year from the date of this Agreement. b. Ordering During the term of this Agreement, Customer shall order quantities of Equipment by issuing a purchase order, change order or release (each an "Order") to Itron, in each case specifying the type and quantity of Equipment, the shipment destination and the requested delivery date. Unless otherwise agreed in a separate writing signed by an authorized representative of each Party, the requested delivery date in an Order must be no earlier than ninety days following Itron's receipt of such Order. c. Firmware The purchase of Equipment manufactured by Itron will include a perpetual,irrevocable license to use and execute any software embedded in the Equipment. The license to any software embedded in third party Equipment provided by Itron shall be between Customer and the manufacturer of such third party Equipment. d. Invoicing. Itron will invoice Customer for the Equipment upon shipment. e. Delivery, Title and Risk of Loss. Unless otherwise agreed by the Parties, Itron will make arrangements with its carrier to deliver Equipment to Customer's location at Customer's expense. For Equipment delivered to Canada, title to the Equipment and risk of loss shall pass to Customer upon delivery to the Customer. For Equipment delivered to all other locations,title to the Equipment and risk of loss shall pass to Customer upon Itron's delivery to a carrier for shipment to Customer. f. Limited Equipment Warranty Warranty and Remedy. Except as otherwise set forth on Attachment A, Itron warrants to Customer that the Equipment that is manufactured by Itron will be free from defects in materials and workmanship and will conform to the applicable published Itron specifications for a period of one year from the date of shipment if purchased directly from Itron and 14 months if purchased through a Distributor. Except to the extent otherwise provided in Attachment A, Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section or under Attachment A shall be for Itron to repair non-conforming Equipment or provide Customer with replacement Equipment after Customer has returned non-conforming Equipment properly packaged and prepaid to a repair facility designated by Itron in accordance with Itron's then-current RMA procedures. If Itron, in its sole discretion, determines that it is unable to repair or replace such non-conforming Equipment, Itron will refund to Customer the amount paid for such Equipment. Equipment that is repaired or 2 03/10/2014 replaced pursuant to this Section will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. Customer will pay the cost of returning non-conforming Equipment to the place of repair designated by Itron and Itron will pay the cost of delivering repaired or replacement Equipment to Customer. ii. Exclusions. The warranty provided herein 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 Itron; usage not in accordance with product instructions or in a configuration not approved by Itron;normal wear and tear;and problems caused by use of parts and components not supplied by Itron. The warranty provided herein shall be void if the Equipment is modified in a way not authorized in writing by Itron. The above warranty does not cover any third party equipment provided by Itron. Any warranty for such equipment will be between Customer and the third party manufacturer. 3. Cloud Service Terms a. Access to Cloud Service. Subject to the terms of this Agreement, Itron grants to Customer, for its internal business purposes only, the non-transferrable, non- exclusive right to access and use the service identified on Attachment A (the "Cloud Service") in accordance with the terms of service attached hereto as Attachment B (the"Terms of Service"). b. Use Restrictions. Customer is responsible for maintaining the confidentiality of all information required to access the Cloud Service and for the activities of its employees or representatives that access the Cloud Service. Customer will not (i) access or use the Cloud Service other than in accordance with the Cloud Service documentation; (ii) reverse engineer the software underlying the Cloud Service; (iii) engage in any activity that interferes with or disrupts the Cloud Service or any servers or networks connected to the Cloud Service; (iv) allow a third party to access the Cloud Service or operate the Cloud Service for the benefit of a third party, including as a service bureau; (v) modify or create derivative works based on the Cloud Service; or(vi) use the Cloud Service in a manner that violates any law or regulation or the rights of any third party. c. Cloud Service Term. Itron will make the Cloud Service available to Customer for-an-..iraitial oaa€--ye4ar--per-ioc i beginning on the tate set-up and configuration ot .;=i7l�ruu ti�rr),:q [)rcernher 31 2015 thf...F#feetiv. nate. Those fter'F (j nnI Itron shall provide the Cloud Service for successive one-year periods unless the Cloud Service is terminated in writing by either Party at least 90 days prior to the end of the then-current one-year period. d. Invoicing. Itron shall invoice Customer for the initial annual Cloud Service fee identified on Attachment A immediately following the Effective Date. Thereafter, Itron shall invoice Customer for each successive one-year period prior to the commencement of such period. Itron may elect to increase the annual fee for any successive annual period by providing Customer with written notice of such increase at least 90 days prior to the commencement of such period. e. Customer Data. Customer retains all right, title and interest in and to any electronic data or information contained in any database, table or similar file or document provided by Customer for use in connection with any Cloud Service(the"Customer Data"). Customer grants to Itron a license to use the Customer Data to the extent necessary for Itron to provide the Cloud Service, or as required by law. Customer is solely responsible for the Customer Data, including providing the Customer Data required for proper operation of the Cloud Service, and will not provide, post or transmit any Customer Data or any other information or material that: (i) infringes or violates the rights of any third party or any law or regulation or(ii)contains any virus or programming routine that has the effect of damaging,surreptitiously intercepting or expropriating any system,data or personal information. Itron may take any remedial action it deems advisable to address any violation of this Section but Itron is under no obligation to review Customer Data for accuracy or potential liability. Customer agrees to indemnify Itron for any loss or damage suffered by Itron in connection with Customer's breach of its obligations under this Section. f. Service Levels. Itron agrees to make commercially reasonable efforts to: (i) maintain Appropriate Security Measures (defined below); (ii) provide regular backups for the Customer Data as further described in the Terms of Service; and (iii) make the Cloud Service generally available 24 hours a day and 7 days a week except for(y) planned downtime in accordance with the Terms of Service and (z) downtime caused by circumstances beyond Itron's reasonable control,including telecommunications or network failures or delays,computer failures that could not reasonably have been prevented by Itron or acts of vandalism (e.g., network intrusions and denial of service attacks). Itron's sole obligation, and Customer's exclusive remedy, in connection with a breach of any obligation of Itron with respect to the performance or availability of the Cloud Service shall be for Itron,at its option,to correct the failure or to refund to Customer the amount paid for the Cloud Service for the period in which it was affected. Customer's subscription to the Cloud Service shall terminate upon its receipt of any such refund. "Appropriate Security Measures" means customary technical, physical and procedural controls to protect Customer Data against destruction,loss,alteration,or unauthorized disclosure to third parties. Customer acknowledges that,notwithstanding Appropriate Security Measures, use of or connection to the Cloud Service presents the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Cloud Service and Customer Data. Accordingly, Itron does not guarantee the privacy,security or authenticity of any information stored in connection with or transmitted to or from any Cloud Service. g. Federal Communications Commission ("FCC")Licensed Facilities. Customer acknowledges and agrees that Itron maintains the exclusive right to operate and control any Federal Communications Commission ("FCC")licensed facilities involved in the provision of services, including the transmitter and other components that produce 3 03/10/2014 RF energy(e.g. Itron Cell Control Units, Endpoints,etc.). Itron will make all decisions regarding any FCC licenses used to implement the Cloud Services provided for by this Agreement, including the preparation and filing of applications with the FCC. 4. Payment Terms and Taxes. The following terms shall apply to any equipment, services or software purchased by Customer directly from Itron. For invoices not paid within 30 days of the invoice date, in addition to other remedies to which Itron may be entitled, Itron may charge Customer a late fee of one percent per month applied against overdue amounts. Customer shall also be responsible for collection costs associated with late payment, if any, including reasonable attorneys' fees. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere shall be construed as an accord or satisfaction. Unless otherwise indicated on Attachment A, Customer shall pay all amounts owing under this Agreement in U.S. Dollars. The prices set forth on Attachment A do not include taxes. Customer will be responsible for and pay all applicable sales, use, excise, value-added and other taxes associated with the provision of products or services by Itron, excluding taxes on Itron's income generally. If Customer is a tax exempt entity, or pays taxes directly to the state, Customer will provide Itron with a copy of its Tax Exemption Certificate or Direct Pay Permit, as applicable, upon execution of this Agreement. 5. Changes. Changes to the products or services ordered by Customer pursuant to this Agreement, including the purchase of additional quantities or entirely new products or services, may be made at Itron's then-current pricing by purchase order or Change Order(in a form acceptable to Itron), provided that any such purchase order must first be accepted by Itron. 6. Confidentiality. With respect to any information supplied in connection with this Agreement and designated by either Party as confidential, or which the recipient should reasonably believe to be confidential based on its subject matter or the circumstances, the recipient agrees to protect the confidential information in a reasonable and appropriate manner, and to use and reproduce the confidential information only as necessary to realize the benefits of or perform its obligations under this Agreement and for no other purpose. The obligations in this Section will not apply to information that is: (i) publicly known; (ii) already known to the recipient; (iii) lawfully disclosed by a third party; (iv) independently developed; or (v) disclosed pursuant to a legal requirement or order. The recipient may disclose the confidential information on a need-to-know basis to its contractor's, agents and affiliates who agree to confidentiality and non-use terms that are substantially similar to these terms. The parties acknowledge and agree that any software provided by Itron in connection with this Agreement shall be considered the confidential information of Itron. 7. IP Ownership Between Itron and Customer, all patents, copyrights, mask works, trade secrets, trademarks and other proprietary rights in or related to any product, software or deliverable provided by Itron pursuant to this Agreement are and will remain the exclusive property of Itron. Any modification or improvement to an Itron product or deliverable that is based on Customer's feedback shall be the exclusive property of Itron. Customer will not take any action that jeopardizes Itron's proprietary rights nor will it acquire any right in any such product, software or deliverable or Itron's confidential information other than rights granted in this Agreement. 8. Indemnification a. General Indemnity. Itron will defend Customer from any third party claim for (i) wrongful death of or bodily injury, to the extent caused by Itron's gross negligence or intentional torts, or(ii) physical damage to tangible personal property, to the extent caused by Itron's gross negligence or intentional torts, and will pay costs and damages awarded against Customer in any such claim that are specifically attributable to Itron's gross negligence or intentional torts or those costs and damages agreed to by Itron in a monetary settlement of such claim. b. Infringement Indemnity. Itron will defend at its own expense any action brought against Customer by an unaffiliated third party to the extent that the action is based upon a claim that any product manufactured, software licensed or service provided by Itron hereunder directly infringes any U.S. patent (issued as of the Effective Date) or any copyright or trademark, and Itron will pay those costs and damages awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to by Itron in a monetary settlement of such action. The foregoing indemnity does not apply to products not manufactured by Itron or software licensed by third parties. c. Conditions to Infringement Indemnity. Itron's infringement indemnity obligations under this Section are conditioned on Customer's agreement that if the applicable product or service, becomes, or in Itron's opinion is likely to become, the subject of such a claim, Customer will permit Itron, at Itron's option and expense, either to procure the right for Customer to continue using the affected product or service or to replace or modify the same so that it becomes non-infringing. Such replacements or modifications will be functionally equivalent to the replaced product or service. If the foregoing alternatives are not available on terms that are reasonable in Itron's judgment, Itron shall have the right to require Customer to cease using the affected product or service in which case Itron will refund to Customer the depreciated value of the affected product or service. d. Exclusions. Itron shall have no obligation under this Agreement to the extent any claim of infringement or misappropriation results from: (i) use of a product or service, other than as permitted under this Agreement or as intended by Itron, if the infringement would not have occurred but for such use; (ii) use of any product or service in combination with any other product, equipment, software or data, if the infringement would not have occurred but for such combination; (iii) any use of any release of a software or any firmware other than the most current release made available to Customer, (iv) any claim based on Customer's use of a product after Itron has informed Customer of modifications or changes to the product required to avoid such claims and offered to implement those modification or changes, if such claim would have been avoided or mitigated by the implementation of Itron's suggestions, (v) any modification to a product made by a 4 03/10/2014 person other than Itron or an authorized representative of Itron, or(vi) compliance by Itron with specifications or instructions supplied by Customer. Itron shall not be liable hereunder for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer. e. Right to Defend. As a condition to Itron's indemnity obligations under this Agreement, Customer will provide Itron with prompt written notice of the claim, permit Itron to control the defense or settlement of the claim and provide Itron with reasonable assistance in connection with such defense or settlement. Customer may employ counsel at its own expense to assist it with respect to any such claim. f. Indemnity Disclaimer THIS SECTION CONSTITUTES ITRON'S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER. 9. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ITRON DISCLAIMS 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. 10. WAIVER OF CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR COVER OR FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL(INCLUDING LOSS OR CORRUPTION OF DATA OR LOSS OF REVENUE, SAVINGS OR PROFITS) OR EXEMPLARY DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ITRON'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 11. CAP ON LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR A BREACH BY CUSTOMER OF(I)ANY INTELLECTUAL PROPERTY RIGHT OF ITRON OR (II) ANY LICENSE GRANTED BY ITRON HEREUNDER, THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES, ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT—WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE—SHALL NOT EXCEED THE TOTAL AMOUNT PAID AND PAYABLE HEREUNDER. ITRON SHALL NOT BE LIABLE FOR ANY CLAIM MADE THE SUBJECT OF A LEGAL PROCEEDING MORE THAN TWO (2)YEARS AFTER THE CAUSE OF ACTION ASSERTED IN SUCH CLAIM AROSE. ITRON'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 12. Term and Termination a. Term of Agreement. Unless terminated earlier as provided herein, the term of this Agreement shall be from the Effective Date through December , ,F. �� _u , . � _, .;a ,_. „ ,., f- The term of this Agreement shall thereafter automatically renew for successive one year periods unless either Party provides the other with written notice of its intent not to renew at least 90 days prior to such termination; provided, however, that Customer shall be obligated to purchase and Itron shall be obligated to provide any product or service that is the subject of an unfulfilled order accepted by Itron prior to the time of any such termination. Notwithstanding the foregoing, the term of any license provided by Itron hereunder shall be as set forth in the provision granting such license. b. Termination for Cause. 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 to the other Party's confidential information; or (iii) commits a material breach of this Agreement, the Distributor/Customer agreement or the Distributor/Itron agreement that remains uncured for 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). c. Survival. 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 including, but not limited to, provisions relating to warranties and warranty disclaimers, intellectual property ownership, payment terms, confidentiality, waiver of consequential damages, and cap on liability. 13. Miscellaneous a. Entire Agreement. This Agreement and any attachments hereto constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all previous agreements pertaining to such subject matter. All prior agreements, representations,warranties, statements, negotiations, understandings,and undertakings are superseded hereby and Customer represents and acknowledges that it has not relied on any representation or warranty other than those explicitly set forth in this Agreement in connection with its execution of this Agreement. Neither Party shall be bound by terms and conditions imprinted on or embedded in purchase orders,order acknowledgments, statements of work not attached hereto or other communications between the Parties subsequent to the execution of this Agreement. 5 03/10/2014 b. Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only by a writing signed by an authorized representative of each Party and declared to be an amendment hereto. 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. c. Governing Law;Jury Trial. This Agreement and performance hereunder will be governed by and construed in accordance with the laws of the State of Washington without reference to Washington conflicts of law principles or the United Nations Convention on Contracts for the Sale of Goods. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT. d. Assignment. Customer may not assign or transfer its interests, rights or obligations under this Agreement by written agreement, merger,consolidation, operation of law or otherwise without the prior written consent of an authorized executive officer of Itron. Any attempt to assign this Agreement by Customer shall be null and void. For purposes of this Agreement, the acquisition of an equity interest in Customer of greater than 25 percent by any third party shall be considered an assignment. e. Publicity. Unless otherwise provided in a separate confidentiality agreement between the Parties, each Party may issue a press release following the execution of this Agreement, subject to the other Party's written approval, which shall not be unreasonably withheld. Each Party hereby consents to the other Party's use of its name, URL and logo on its website and in its customer and partner lists for corporate and financial presentations. f. Force Majeure. Neither Party will be responsible for any failure or delay in performing any obligation hereunder if such failure or delay is due to a cause beyond the Party's reasonable control, including, but not limited to acts of God, flood, fire, volcano, war, third-party suppliers, labor disputes or governmental acts (a "Force Majeure Event"). Notwithstanding the foregoing, no obligation to make any payment required under this Agreement is excused as a result of a Force Majeure Event. g Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be delivered in person, by facsimile, by certified mail (return receipt requested), or by a nationally recognized overnight service with all freight charges prepaid,to the address set forth below. Notices will be deemed to have been given at the time of actual delivery, if in person, or upon receipt(as evidenced by facsimile confirmation, return receipt or overnight delivery verification). Either Party may change its address for notices by written notice to the other Party in accordance with this Section. Itron: Attn: General Counsel Customer: Itron, Inc. 2111 North Molter Road Liberty Lake,WA 99019 h. Miscellaneous. Headings used in this Agreement are intended for convenience or reference only and will not control or affect the meaning or construction of any provision of this Agreement. If any provision in this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby and such provision shall be interpreted so as to best accomplish the intent of the Parties within the limits of applicable law. Any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement shall not apply to the terms and conditions of this Agreement. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed an original, and all of which together shall constitute one and the same agreement. If available, maintenance and support for products will be provided pursuant to a separate maintenance agreement. Itron shall perform all work to be performed in connection with this Agreement as an independent contractor and not as the agent or employee of Customer. All persons furnished by Itron shall be for all purposes solely Itron's employees or agents and shall not be deemed to be employees of Customer for any purpose whatsoever. This Agreement is entered into only for the benefit of Customer and Itron. No other person or entity shall have the right to make any claim or assert any right hereunder, and no other person or entity shall be deemed a beneficiary of this Agreement. [Signature Page Follows] 6 03/10/2014 Agreed to and accepted: Itron, Inc. Custorer°City of Port Arthur Signature: Signature: Print Name: Print Name: Title: Title: Date: Date: Tax Exempt: Yes/No(if Yes, attach copy of Tax Exemption Certificate) [Signature Page to Indirect Sales Agreement] 7 ATTACHMENT A-1 Please check the type of Software being licensed or hosted(Itron Cloud Service)and enter the number of meters. SoftwareUnits Warranty Warranty Itron Cloud Start Date Term Service "MV-RS Up to Delivery 14 months N/A Endpoints Field Collection System Software Up to Delivery 5 months Endpoints Network Software Up to Delivery 5 months Endpoints Network Software—Outage Notification Up to Delivery 5 months N/A Endpoints Itron Analytics Up to _ Delivery 5 months Endpoints Itron Analytics Customer Portal Up to Delivery 5 months Endpoints Itron Security Manager(ISM) Up to Delivery 5 months Endpoints Field Deployment Manager(FDM) Up to Delivery 5 months Endpoints r- FDM—Endpoint Tools Enhanced Up to Delivery 5 months .._. Endpoints Mlogonline Up to Delivery 5 months Endpoints *Customer receives 5 months of Phone Support at no charge for the MV-RS Product. PRICING SUMMARY FOR PRODUCTS AND SERVICES PURCHASED DIRECTLY FROM ITRON ATTACHMENT A-2 Warranty Terms Product Warranty Terms Mobile Collector 3 years from shipment Centron and Sentinel 3 years from shipment electricity meters Repairs for out-of- Itron shall perform the repairs with reasonable care and in a diligent and competent manner. Itron's warranty electricity meter: sole obligation in connection with repair warranty failures shall be, at its option,to correct or re-perform repairs or refund to Customer the amount paid for the repairs. Customer must report any deficiencies in repair work to Itron in writing within 90 days of shipment to receive the remedies described herein. 200W series water Standard Warranty: Full warranty consistent with the warranty terms in the Agreement for the first 5 endpoints (including years from shipment. battery) Optional Extended Warranty (if purchased by Customer): For warranty claims in years 6 through 10, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 100 percent of its then-current list price for the replacement product. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third party reading system that is not approved by Itron. 100W and 60W series Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. water endpoints For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a (including battery) discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third party reading system that is not approved by Itron. Leak Sensor Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. Upgraded handhelds or 90 days from shipment mobile collectors METRIS Meters and 1-25( Itron warrants that eighty five percent(85%)or more of the METRIS Meters and 1-250 Meters shipped Meters to Customer during any calendar year will be free from defects in materials and workmanship such that they maintain set point calibration that is within two percent of their original factory set point calibration (open and check) ("Calibration Warranty"). The foregoing Calibration Warranty is valid until the earlier of(i) 15 years from shipment to Customer of the METRIS Meter and 1-250 Meter for which warranty coverage is sought, (ii)the measurement of more than one million cubic feet of gas measured by such meter, or(iii) until such meter is replaced by Customer in connection with a periodic meter change-out. Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section shall be for Itron, at its option,to repair any non-conforming METRIS Meters and 1-250 Meters, provided that if Itron determines that it is unable to repair a non-conforming METRIS Meter and 1-250 Meter, Itron will refund to Customer the depreciated value of such non-conforming METRIS Meter and 1-250 Meter. At the request of Itron, Customer will provide evidence of a meter's service history to verify warranty coverage. ATTACHMENT B Terms of Service (TO BE ATTACHED IF CLOUD SERVICE IS PURCHASED) 'iron Knowledge to Shape Your Future CITY OF PORT ARTHUR TEXAS MAINTENANCE AND CLOUD SERVICES QUOTE 2nd Year ANNUAL MAINTENANCE(Optional) All Maintenace Fees are paid directly to Itron Inc. QTY 2 CCU 100, Internal GPS/WAN Antenna, AC powered, Cellular WAN with direct mount ERT antenna and hardware $120.00 $240.00 5 TCU 130, External GPS/WAN Antenna, AC powered, Cellular WAN with remote mount ERT antenna and hardware $120.00 $600.00 5 Tower Box,AC powered $102.00 $510.00 58 Repeater 100,Internal GPS/WAN Antenna, AC powered with direct mount ERT antenna and hardware $72.00 $4,176.00 1 Network Software up to 25,000 ERT's $1,800.00 $1,800.00 1 MVRS Software License -Up to 25,000 ERT's Serviced $2,004.00 $2,004.00 3 FC300, Sread Radio, Bluetooth $435.00 $1,305.00 3 FC300 single dock, includes power supply and power cable $37.80 $113.40 1 2nd Year Annual Cloud Services $25,260.00 $25,260.00 ANNUAL MAINTENANCE AND CLOUD SERVICES TOTAL $36,008.40