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ESRI Agreement
SMALL MUNICIPAL AND COUNTY r' ENTERPRISE LICENSE AGREEMENT (E214M =3 04/04/2011) - Esri, 380 New York St., Redlands, CA 92373 -8100 USA • TEL 909 - 793 -2853 • FAX 909 -5953 This Small Municipal and County Enterprise License Agreement ( "ELA ") is by and between the organization identified in the ELA Quotation ( "Licensee ") and Environmental Systems Research Institute, Inc. (".Esri"), with offices at 380 New York Street, Redlands California 92373 =8100. Unless otherwise agreed to by the parties, the Effective Date of this ELA is the date of the signature below or, if no date is provided with the signature, the date of Esri's receipt of Licensee's Purchase Order citing this ELA. This ELA grants Licensee certain - rights to use specific Esri Software, Data, Web Services, and Documentation for a limited, fixed period beginning from the Effective Date and - provides tailored maintenance subject to payment of fees and the terms of this ELA. This ELA is composed of (i) this signature page and the ELA Terms and Conditions, (ii) Exhibit 1 —Scope of Use (E300), (iii) Exhibit 2— Training Addendum (E207SETM), and (iv) the ELA Quotation, which together constitute the sole and entire agreement of the parties as to the subject matter set forth :herein. Should there be any conflict between the terms and .conditions of the documents that comprise the ELA, - the order of precedence for the documents shall be as follows: (i) this signature page and the ELA Terms and Conditions, (ii) Exhibit 1 —Scope of Use (E300), (iii) Exhibit 2----Training Addendum (E207SETM),'and (iy) the ELA Quotation. In the event Licensee orders training courses, the - terms and conditions of the Training Addendum will take precedence over the provision of the ELA with respect to the training courses. Licensee agrees that additional terms and conditions in any :Licensee Purchase Order or addendum will not apply, and the terms of this ELA will govern. ENTERPRISE SOFTWARE SCHEDULE Unlimited Quantities ArcIMS Desktop Software and Extensions ArcGIS Server Extensions: 3D, Schematics, Geostatistical, , Arclnfo ArcGIS Workflow Manager, Network, Image, and Spatial ArcEditon ArcView : Developer ArcGIS Desktop Extensions: 3D Analyst, Spatial Analyst, Network ArcGIS Engine Runtime. 'Analyst, Geostatistical Analyst, ArcScan for ArcGIS, ArcGIS Publisher, ArcGIS Engine Runtime Extensions: 3D, Spatial, Geodatabase Maplex for ArcGIS, Schematics, and ArcGIS Workflow Manager Update, Network, Schematics, :and Maplex ServeffSoftware and,Extensions Limited Quantities ` ArcGIS Server Workgroup or-Enterprise (Advanced, Standard, and One Annual Subscription to Esri Developer Network (EDN) " Basic) OTHER BENEFITS Number-of-Esri International User Conference Registrations provided annually -4 Number of Tier 1 Help Desk Individuals authorized to call Esri 4 'Maximum number of sets of backup media; if requested* _2 Virtual Campus Annual User License allowance '10,000 Five - percent (5 %) discount on all individual commercially available instructor -led training classes at Esri facilities purchased outside of this Agreement (Discount does not apply to Small Enterprise Training Package.) * Additional sets of backup media may be purchased. This ELA supersedes any previous agreements, proposals, presentations, understandings, and arrangements between the parties relating to such.subject matter, which is the licensing of the Enterprise Software. Except as provided in Section 9.1 Future Versions /Updates, any modifications or amendments to this ELA must be in writing and signed by an authorized representative of each party. Licensee may accept this ELA by signing and returning it with an authorizing Purchase Order that matches the ELA Quotation, references the ELA, and includes the following statement on the face of its Purchase Order: "THIS "PURCHASE ORDER IS GOVERNED BYTHE TERMS AND CONDITIONS OF THE ESRI SMALL MUNICIPAL AND COUNTY ELA, AND ADDITIONAL TERMS AND CONDITIONS IN THE PURCHASE ORDER WILL•NOT APPLY." Licensee will return this ELA and its Purchase Order to Attn.: Esri Customer Service, 380 New York Street, Redlands, CA'92373 -8100; , e -mail it to service(abesri.com or fax it to 909 -307 -3083. ACCEPTED AND AGREED: Licensee Contact Information n Contact Name: Bert Dorrestryn (Licensee) Address: 1700 Convention Center Drive By: ity, State, ZIP: - Miami Beach, FL 33139 Sig at re " "••.`�T hone: (305) 673 -7000 Printed Name: Y" ? G O ►'1' -' Title: • +- Oa Ot n 1 C r'' 'E ai Date: 00s __--- . -_ - -- _ - - -. -. Ell A tation Number: 20391104 iNCORP ORATE 1 Esri C tract NumbeA ROVE I AS TO F / _ FORM & LANGUAGE f ATTEST l +...��•... °, ' �ag�l 04/04/2011 10/18/2011 z t ® 2 it ` ome k;Al ace ELA TERMS AND CONDITIONS ART_ ICLE 2— INTELLECTUAL PROPERTY RIGHTS AND. RESERVATION OF OWNERSHIP ARTICLE 1— DEFINITIONS 'The Enterprise Software is licensed and not sold. Esri and its Definitions. The terms used are defined as follows: licensors own the Enterprise Software and all copies, which are protected by United States and applicable international laws, ■ "Data" means any Esri or third -party digital dataset(s) treaties, and conventions regarding intellectual property and including, but not limited to, geographic vector data .proprietary rights including trade secrets. Licensee agrees to use coordinates, raster, reports, or associated tabular reasonable means to protect the Enterprise Software from attributes licensed under this ELA: unauthorized use, reproduction, distribution, or publication. Esri "Deploy," "Deployed," or "Deployment" means to and its third -party licensors reserve all rights not specifically redistribute and install. or the redistribution and installation granted in this ELA including the right to change and improve of . the Enterprise , Software (and related key Web Services. codes /registration files) or-its having been redistributed and installed by Licensee on Licensee's hardware. ARTICLE -3 —GRANT OF LICENSE ■ "Documentation" means all printed, and digital materials . including, but not limited to, help files, user reference 3:1 Grant of License. Subject to the terms and conditions of this documentation, training documentation, or technical ELA, Esri grants to Licensee a personal, nonexclusive; information and briefings. nontransferable Term License solely to "ELA Fee" the fee set forth in .ELA Quotation. ■ "ELA' Maintenance" means Tier .2 Support, updates, and -a. Use, copy, and Deploy quantities of Enterprise Software patches provided by - Esri to Licensee for the Enterprise as defined in the Enterprise Software Schedule. of this Software. ELA for Licensee's.own internal use for a term concurrent "ELA Quotation" means the Esri quote form provided to with this ELA. Licensee for r the Small Municipal and County ELA b. Deploy one subscription of the Esri Developer Network for containing the ELA Fee and annual payment schedule. use by a single named developer for the term. of'this .ELA. "Enterprise Software" means the items identified in the c. Access and use any secure Esri website resources made Enterprise Software Schedule on page 1 of this ELA. available to Licensee for Licensee's internal use, provided "Incident" means a failure of - the Software to operate that Licensee follows Esri's terms of use policy specified according to the Documentation where such failure therein. All password or 'controlled access information substantially impacts operational or functional provided by Esri shall be treated as Esri confidential performance. information. "License Agreement" and "ELA ".are used interchangeably d. Use Enterprise Software in accordance with Exhibit 1— and mean the ;ELA Terms and . Conditions, including Scope . of Use (provided that all licenses are Term Exhibit 1 ' Scope of Use (E300), that apply to Enterprise Licenses). Software ,provided to Licensee by Esri under this ELA. "Samples" means sample code, sample applications, add- 3.2 Consultant Access. Subject to section 3. 1, Licensee may ons, or sample extensions of Software, Data, provide access to the Enterprise Software to any consultant or Documentation, or Web Services. contractor of Licensee, provided consultants' and contractors' use "Software" means the actual copy of all or any portion of is for 'the sole benefit of Licensee while (i) working on -site at Esri's proprietary software technology accessed or Licensee's facilities, (ii) remotely accessing or using Enterprise downloaded - from an authorized Esri website or delivered Software from Licensee's on -site computers or machines, or on any media, in any format, including backups, updates, (iii) remotely accessing or using Enterprise Software from a third service packs, patches, hot fixes, or permitted merged party's computers or machines under contract to Licensee. copies. Licensee shall be responsible for .compliance by consultants or "Technical Support" means a process to attempt to contractors with the terms and conditions of this :ELA. Licensee resolve reported Incidents through error correction; shall require consultant or contractor to- discontinue access to and patches hot fixes; workarounds; or any other type of use of Enterprise. Software upon completion of work for Licensee. Software, Data, or Documentation corrections or modifications. ARTICLE•4 —SCOPE OF USE "Term License" means licenses provided for use during a fixed or limited time period concurrent with the term of this -4.1 Permitted Uses ELA. ■ "Tier 1 Help Desk" means Licensee point of contact - from a. Licensee may install and store the Software, Data, and which all Tier 1 Support will be given to Licensee. Documentation on 0lectronic device(s). ■ "Tier 1 Support" means the Technical Support provided by b. Licensee may make one (1) copy of the Software, Data, the'Tier 1 Help Desk.asthe primary contact to Licensee in and Documentation for archival purposes. Licensee may attempted resolution of reported Incidents. make routine computer backups. ■ "Tier 2 Support" means the Technical Support provided.by c. Licensee may customize the Software using any (i) macro Esri to the Tier 1 Help Desk when the Incident cannot be or scripting language, (ii) published application resolved through Tier 1 Support. programming interface (API), or (iii)- source or object code • "Web Services" means software services or Esri or third- libraries, but only to the extent that such customization is party data provided by Esri that perform geographic described in the Documentation. information system (GIS) functions, tasks, or data d. Licensee may use, copy, or prepare derivative. works of services and are accessed over the Internet, excluding the, Documentation supplied in digital format and Virtual Campus. thereafter reproduce, display, and redistribute the customized documentation only for Licensee's own internal use. Portion(s) of Documentation supplied in digital format merged with other software and printed or digital documentation are subject to this ELA. Licensee E214M -3 Page 2 of 6 04/04/2011 2011 SGE7714 10/18/2011 shall include the following copyright attribution notice uninstall, remove, and destroy all Deployed Software, Data, and acknowledging the proprietary rights of Esri and its Documentation and any whole or partial copies, modifications, licensor(s): "Portions of this document include intellectual media, or merged portions in any form and. execute and deliver property of Esri, and its licensor(s) and are used herein evidence of such actions -to Esri. -ELA Maintenance, Virtual- under license. Copyright © [Insert the actual copyright Campus access, and User Conference Registrations shall also date(s) from the. source materials] Esri and its licensor(s). terminate. All rights reserved." 4.2 Uses Not Permitted ARTICLE 6- LIMITED WARRANTIES AND DISCLAIMERS a. - Except as provided herein, Licensee shall not sell, rent, lease, 6.1 Limited Warranties. Except as otherwise provided for in this sublicense, lend, assign, . or time -share the .Enterprise Article. 6, Esri warrants that the unmodified Software will Software.. :Licensee shall 'not act as a service bureau or substantially conform to the published Documentation and the -commercial application .service provider {ASP) that allows media upon which the Software is provided, if .any, will be free - third -party access to the Enterprise .Software. Licensee shall from defects in materials and workmanship under normal use and not use Enterprise..Software for .a site or service and .operate, service for a period of ninety (90) days from the date of receipt. the site or the service fora profit or generate revenue through 6.2 Data and Web - Services Disclaimer. The Data and Web direct or indirect methods (e.g., .advertising or charging #or Services may contain some nonconformities, defects, errors, or access to the site or service). omissions. THE DATA AND WEB SERVICES ARE PROVIDED b. Except as provided herein, Licensee shall not redistribute the "AS 1S" WITHOUT WARRANTY OF ANY KIND. Without limiting Software to third parties, in whole or in part, including, but not the generality of the preceding sentence, Esri and its licensor(s) limited - to, extensions, components, or DLLs. do not warrant _that the Data and Web Services will meet c. Licensee shall not reverse engineer, decompile, or Licensee's needs or expectations, that the use of the Data and disassemble the Enterprise Software, except to the extent that Web Services will be uninterrupted., or that all nonconformities such activity is expressly permitted by applicable law can or will be corrected. Esri and its licensor(s) are not inviting notwithstanding this restriction. reliance on - this Data, or Web Services, and Licensee should d. Except to the extent. that applicable law prohibits this always verify actual Data or Web Services. restriction, Licensee shall not make any attempt to circumvent the technological measures that control access to, or use of, 6.3 Special Disclaimer. SAMPLES, PATCHES, AND HOT the Enterprise Software. FIXES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY e. Except as provided herein, Licensee shall not redistribute the KIND. LICENSEE ASSUMES ALL RISK AS TO THE QUALITY Software activation number(s), registration number /license AND PERFORMANCE OF THE SAMPLES, PATCHES, AND authorization file(s), developer license file(s), or Web Services HOT FIXES. - access codes to third parties. - f. Licensee shall not use the Software or Web Services -to 6.4 Internet Disclaimer. THE - PARTIES EXPRESSLY transfer or exchange any material where "such transfer or ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A exchange is prohibited by intellectual property laws or any NETWORK OF PRIVATE AND PUBLIC NETWORKS, AND THAT other applicable laws. (i) THE INTERNET IS NOT A SECURE INFRASTRUCTURE, g. .Licensee shall not 'remove or obscure any Esri or its (ii) THE PARTIES HAVE NO CONTROL OVER THE INTERNET, licensor(s) patent, copyright, trademark, or proprietary rights notices contained in or affixed to'the.Enterprise Software. AND (iii) NONE OF THE PARTIES .SHALL BE LIABLE FOR. h. Licensee shall not unbundle individual or component parts of DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE the Software or Data for independent use. DISCONTINUANCE OF OPERATION OF ANY PORTION OF i. Hard -copy Documentation may not be copied. THE INTERNET OR POSSIBLE' REGULATION OF' THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE j. Licensee shall -not use transfer, redistribute, or Deploy OPERATION OF THE WEB SERVICE. Enterprise Software outside the United States. ARTICLE 5—TERM AND TERMINATION AND EXPIRATION 6.5 General Disclaimer. EXCEPT FOR THE ABOVE .EXPRESS LIMITED 'WARRANTIES, ESRI DISCLAIMS ALL OTHER 5:1 Term. The term of the ELA shall be three (3) years from the WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER Effective Date, unless .this ELA is terminated earlier as provided EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO; WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND herein. The term of all licenses and the authorized of use _ for all Enterprise Software Deployed. shall 'be concurrent with the FITNESS FOR A PARTICULAR PURPOSE, term of this. ELA. No indefinite or. perpetual license grants are NONINTERFERENCE, SYSTEM INTEGRATION, AND provided with this ELA. NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ESRI DOES NOT WARRANT AND I DISCLAIMS THAT THE 5:2 Termination for.Lack of Funds. Either party may, ENTERPRISE SOFTWARE WILL MEET LICENSEE'S NEEDS; terminate THAT LICENSEE'S OPERATION OF THE SAME . WILL BE -this .ELA for Lack of Funds. Lack of Funds is the inability of UNINTERRUPTED, ERROR FREE, =FAULT TOLERANT, OR' Licensee to secure appropriation of funds through the legislative FAIL -SAFE; OR THAT ALL NONCONFORMITIES CAN OR WILL or.governing body's approval process for annual payments due: BE CORRECTED. SOFTWARE, .DATA, WEB SERVICES, AND 5.3 Termination for a Material Breach. Either party may DOCUMENTATION ARE NOT DESIGNED, MANUFACTURED, terminate this ELA for a material breach by the other party. The OR INTENDED FOR USE IN ,ENVIRONMENTS. OR breaching party shall 'be given a period of thirty (30) days from APPLICATIONS THAT MAY LEAD TO DEATH, PERSONAL date of written notice to cure any material breach. INJURY, OR PHYSICAL . PROPERTY /ENVIRONMENTAL DAMAGE. ANY SUCH USE SHALL BE AT LICENSEE'S OWN - _5.4 No Use upon Expiration or Termination. Upon expiration or RISK AND COST. termination of this ELA, all Enterprise Software Deployed shall 6.6 Exclusive Remedy. Licensee's exclusive remedy and Esri's terminate. Licensee shall cease access and use of Web Services entire liability for breach of the limited warranties set forth in this and clear Web Services client -side data cache and cease use, Article 6 shall be limited, at Esri's sole discretion, to (i) repair, E214M -3. Page 3 of 6 04/04/2011 2011SGE7714 10/18/2011 correction, or a workaround for the Software subject to the Esri substantially similar software functionality or data /informational Maintenance Program , found at www.esri.com /legal content. If neither alternative is commercially reasonable, the /maintenance.html or (ii) return of the license fees paid by infringing items shall be returned to Esri, the • license shall Licensee for the Software or Documentation that does not meet terminate, and Licensee shall uninstall the infringing items. Esri's Esri's limited warranty, provided that Licensee uninstalls, entire liability shall then be to indemnify Licensee pursuant to removes, and destroys all copies of the Software or section 8.1 and refund a portion of the fees paid by Licensee in Documentation and executes and delivers evidence of such the current fee payment period. The refund will be calculated for actions to Esri. the time remaining -for the fee payment period, starting from the notice date of infringement to the end of the fee payment period. ARTICLE 7— LIMITATION OF LIABILITY 8.3 Esri shall have no obligation to defend Licensee or to pay any 7.1 Disclaimer of Certain Types of Liability. EXCEPT FOR resulting costs, .damages, or attorneys' 'fees for any claims or. LICENSOR'S MISAPPROPRIATION OR INTELLECTUAL demands alleging- direct or contributory infringement of the PROPERTY INFRINGEMENT, NEITHER PARTY SHALL NOT Software'by (i) the combination of or integration with a product, BE LIABLE TO THE OTHER FOR COSTS OF PROCUREMENT process, or system not supplied. by Esri; (ii) material alteration by OF SUBSTITUTE GOODS OR SERVICES;, LOST PROFITS; anyone other than Esri or .contractors acting on behalf of Esri; LOST SALES OR BUSINESS EXPENDITURES; INVESTMENTS; (iii) use after Licensee has been notified of possible infringement; BUSINESS COMMITMENTS; OR LOSS OF ANY GOODWILL or-(iv) use after modifications are provided or a return is ordered OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR by Esri under section 8.2. CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS ELA OR USE OF THE ENTERPRISE SOFTWARE, 8.4 In no event shall the indemnification set forth in this Article 8 HOWEVER CAUSED ON ANY THEORY OF LIABILITY, apply to any Samples provided hereunder. WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE THE FOREGOING STATES THE ENTIRE OBLIGATION OF LIMITATIONS SHALL APPLY NOTWITHSTANDING .ANY ESRI WITH RESPECT TO INFRINGEMENT OR ALLEGATION FAILURE OF .ESSENTIAL PURPOSE OF ANY LIMITED OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS REMEDY.. OF ANYTHIRD PARTY. 7.2 General Limitation of Liability.' EXCEPT FOR LICENSOR'S ARTICLE 9— GENERAL PROVISIONS 'MISAPPROPRIATION OR INTELLECTUAL PROPERTY INFRINGEMENT, AND EXCEPT AS PROVIDED IN ARTICLE 9.1 future Versions /Updates..Esri retains the right to add items 8— INFRINGEMENT INDEMNITY, EACH PARTY'S TOTAL to the Small Municipal and County Enterprise program suite. As CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES new Enterprise Software is incorporated into the standard OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED program, it will be offered to. Licensee via written notice for `TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), - STRICT incorporation into the .Enterprise Software Schedule at no LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, additional charge. New or updated 'Enterprise Software may OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID require additional or revised terms and conditions. Terms and BY LICENSEE FOR ENTERPRISE SOFTWARE PURSUANT TO conditions subject to revision are limited to Article 1— Definitions; THIS ELA. Article 4 —Scope of Use, and Exhibit 1 —Scope of Use (E300) or any term as required by law. Esri may provide notice of the 7.3 Applicability of Disclaimers and Limitations. The parties additional terms or revisions to Licensee in writing or by posting agree that they have entered into this ELA in reliance upon the them on Esri's website at www.esri.com /legal The additional disclaimers and. limitations set forth herein, that the same reflect terms or revisions 'shall be incorporated into this ELA upon use of an allocation of risk between the .parties, and that the same form the I updated or new Enterprise Software. Should Licensee reject an essential basis of the bargain between the parties.,'THESE the additional terms or revisions, then Licensee shall not install or LIMITATIONS SHALL APPLY - NOTWITHSTANDING ANY use the revised, updated, or new Enterprise Software. FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED ^ REMEDY. 9.2 Export Control Regulations. Licensee expressly acknowledges and agrees that Licensee shall not export, ARTICLE 8— INFRINGEMENT INDEMNITY reexport, transfer, or release the Enterprise Software, in whole or in part, to (i) any US embargoed country (or to a national or 8.1 Esri shall defend, indemnify, and hold harmless Licensee from resident of:any US.embargoed country); (ii) any person on the US and against any loss, •liability, cost, or expense, including Treasury Department's list of Specially Designated Nationals; reasonable attorneys' fees, which may be incurred by Licensee (iii) any person or entity on the US Commerce Department's against any claims, actions, or demands by a third party alleging Denied Persons List, .Entity List, or Unverified List; or (iv) any that the Software infringes a US patent, copyright, or 'person or entity to which such export or reexport violates any US provided export control laws or regulations including, but not limited to, the terms of any export license or license exemption and any a Licensee promptly notifies Esri in writing of the claim; amendments and supplemental additions to US export laws as b. Licensee provides documents clearly describing the they may occur from time to time. allegations of infringement; c. Esri has sole control of the defense of any actions and. 9.3 Taxes and fees. Sales or use taxes for the fees quoted are _ negotiations related to the defense or settlement of any as required by law. The .tax amount may change depending, on claim; and the time elapsed between this quote and date of the invoice. Esri d. Licensee cooperates fully in the defense of the claim. will include applicable sales or use taxes on your invoice unless you provide proof with your order that your organization or.use -of 8.2 If the Software is found to infringe a US patent, copyright, or the product is tax exempt. trademark, Esri, at its own expense, may either (i) obtain rights for Licensee to continue using the Software or (ii) modify the '9.4 No Implied Waivers. The failure of either party to enforce any allegedly infringing elements of the Software while maintaining provision of . this ELA shall not be deemed a waiver of the E214M -3 Page 4 of 6 04/04/2011 2011SGE771.4 10/18/2011 provisions or of the right of such party thereafter to enforce that or b. Tier 2 Support Provided by Esri any other provision. (1) Esri shall log the calls received from Tier 1 Help Desk 9.5 Severability. The parties agree that if any provision of this individuals. ELA is held to be unenforceable for any reason, such provision (2) Esri shall review all information collected by and shall be reformed only to the extent necessary to make the intent received from Tier 1 Help Desk individuals including .of the language enforceable. preliminary documented troubleshooting provided by Tier 1 Help Desk when Tier 2 Support is required. 9.6 Successor and Assigns. Licensee shall not assign, (3) Esri may request that Tier 1 Help Desk individuals sublicense, or transfer Licensee's rights or delegate its obligations provide verification of information, additional under this ELA without Esri's prior written consent, and any information, or answers to additional questions to attempt to do so without consent shall be void. This ELA shall be supplement any preliminary -information gathering or binding upon the respective successors and assigns of the parties troubleshooting performed by Tier 1 Help Desk. to this:ELA. (4) Esri shall attempt to resolve the Incidents submitted by Tier 1 Help Desk by assisting the Tier 1 Help Desk 9.7 - Survival of Terms. The provisions of Articles 2, 5, 6, 7, 8, individuals. and 9 of this ELA shall survive the expiration or termination of this (5) When the Incident is resolved, Esri shall communicate ELA. the information-to the Tier 1 Help Desk individuals, and the Tier .1 Help .Desk shall disseminate the 9.8 Equitable Relief. The parties agree that any breach of this resolution. to the user. ELA may cause irreparable damage and that, in the event'of such. Esri ma , ' breach, in addition to any and all remedies at law, a party shall Y' at Esri's sole discretion, make patches, hot have the right to seek an injunction, specific performance, or other fixes, or updates available for downloading from Esri's equitable relief in any court of competent jurisdiction. website. c. No Software other than the defined Enterprise Software 9.9 Governing :Law. 'This ELA shall be governed by and will be provided maintenance under this ELA. Licensee construed in accordance with the laws of the state in which may acquire maintenance for other Software (non - .Licensee is located without reference to conflict of laws principles, Enterprise Software) outside of this ELA. except that US federal law shall govern in matters . of intellectual property. ARTICLE 11— ORDERING, ADMINISTRATIVE PROCEDURES, ARTICLE 10 —ELA MAINTENANCE "DELIVERY, AND DEPLOYMENT 11.1 Purchase Orders, Delivery, and Deployment ELA Maintenance for Enterprise Software provided under this ELA is included with the 'ELA Fee. ELA Maintenance includes a. Licensee shall issue a Purchase Order upon execution of the standard maintenance benefits specified in the most current ELA and annually thereafter in accordance with the ELA applicable Esri US Software . Maintenance Program document Quotation. Payment shall be due and payable within (found www.esri.com /legal as modified by this Article 10 =ELA thirty (30) days of the anniversary date of the Effective Date, Maintenance. ELA Maintenance does not. include Technical with the initial payment due within thirty (30) days of execution Support for Web Services. of the ELA. Esri's Federal ID'Number is 95- 2775 -732. a. Tier 1 Support Provided by Licensee b. Upon receipt of the initial Purchase Order from Licensee, Esri shall authorize download of the Enterprise Software to (1) Licensee shall provide Tier 1 Support through the Licensee for its Deployment activities. If requested,' Esri will Tier 1. Help Desk to all Licensee's authorized users. ship backup media to the ship -to address identified on the (2) The Tier 1 Help Desk will use analysts fully trained Purchase Order, -FOB 'Destination, with shipping charges the Software they are supporting. prepaid. For those entities - that avoid sales tax by (3) At a minimum,' Tier 1, Support will include those downloading deliverables, request for delivery or receipt of activities that assist the user in resolving how -to and tangible media may cause license fees to be subject to taxes. operational questions as well as questions on Licensee acknowledges that should such taxes become due, installation and troubleshooting procedures. Esri has .a right to invoice and Licensee agrees to pay any (4) Tier .1 Support analysts will be rthe initial points of such sales or use tax associated with its receipt of tangible contact for all questions.and Incidents. Tier 1 Support media. analysts shall obtain a full description of each reported c. Esri shall provide registration numbers or keycodes, -as Incident and the system configuration from the user. _ applicable, to activate the nondestructive copy protection 'This may include obtaining any customizations, code program that enables the Enterprise Software to operate. samples, or data involved in the Incident. The analyst d. Licensee shall Deploy, install, configure, and track the may also use any other information and databases Deployment status of the Enterprise - Software. that may be developed to satisfactorily resolve Incidents. 11.2 Purchase Order Requirements (5) If the Tier 1 Help Desk cannot resolvethe incident, an authorized Tier 1 Help Desk individual may contact a. All orders pertaining to this �ELA shall be processed through Esri Tier ..2 Support: The Tier. 1 Help Desk shall Licensee's centralized point of contact. provide support in such a way as to minimize repeat b. The following information shall be included in each Purchase calls and make solutions to . problems available to Order: Licensee. (6) Tier 1 Help Desk individuals identified .by Licensee are (1) Licensee Esri customer number, if known; and bill - the only individuals (callers) authorized to contact.Esri to and ship -to addresses directly for Tier 2 Support. Licensee may revise (2) Purchase Order number named individuals by written notice. (3) Applicable annual payment due E214M -3 Page 5 of 6 04/04/2011 2011SGE7714 10/18/2011 (4) On the face page of its Purchase Order (or ordering document), Licensee shall insert a reference to the ELA and the following statement: "THIS PURCHASE ORDER IS GOVERNED BY THE TERMS AND CONDITIONS OF THE ESRI SMALL MUNICIPAL AND COUNTY ELA, AND ADDITIONAL .TERMS AND CONDITIONS IN THE PURCHASE ORDER WILL NOT.APPLY." ARTICLE 12— ENDORSEMENT AND PUBLICITY This ELA shall not be construed or interpreted as an exclusive dealings agreement or an endorsement of Esri by Licensee. Licensee agrees that upon execution of the ELA, Esri may publicize the existence of this ELA. ARTICLE 13— ADMINISTRATIVE REQUIREMENTS 13.1 OEM, Licenses. If Licensee obtains Software, Data, Web Services, or any component thereof as part of an original equipment manufacturer (OEM) software program or product developed and licensed by an OEM business partner of Esri, Licensee shall not be entitled to or seek any.discount from the OEM business partner or Esri, directly or indirectly, as a result of . or based -on the availability of such Software, Data, or Web Services as Enterprise Software under this ELA. In addition, such Software, Data, Web Services, or any component thereof included in the OEM software program or product will be licensed through the license agreement .provided by the OEM business partner.and not through this ELA. 13.2 Product Obsolescence. During the term of this ELA, some Enterprise Software items may become obsolete, may no longer be commercially offered, or may no longer be available for unlimited quantity Deployment. Licensee may continue to use such Enterprise Software that has been Deployed for the term of the ELA, but .updates for such obsolete Enterprise Software may not be available. Esri's Product Life Cycle Support Policy, available at help.arcgis.com /en /shared /Product -life- cycle /ProductLifeCycle.pd defines the support phases and overall support plans. ELA Maintenance shall be' subject to the individual Product Life Cycle Support Status, which can be found at hftp: // resources .arcgis,com /content/product -life- cycles 13.3 Renewal. Upon expiration of this ELA, the parties will evaluate Licensee's requirements. Any follow -on ELA will be offered in accordance with license terms and condition and pricing then in effect and based on Licensee's then current population count. ARTICLE 14— OPTIONAL ITEMS If training courses identified in the ELA Quotation are acquired, they will be subject to the terms found in Exhibit 2= Training Addendum. In the event Licensee orders training courses, the terms and conditions of the Training Addendum will take precedence over the provision of the ELA with respect to the training courses. E214M -3 Page 6 of 6 04/04/2011 2011SGE7714 10/18/2011 • EXHIBIT 2 esn TRAINING ADDENDUM (E207SETM.3 /11) Esri, 380 New York St., Redlands, CA 92373 -8100 USA • TEL 909 - 793 -2853 • FAX 909 - 793 -5953 ARTICLE 1— TRAINING DESCRIPTION participation due to US government export regulation requirements, course scheduling changes, or cancellations. Esri offers instructor -led training related to the use of its Licensee must provide written notice to Esri's Customer proprietary, GIS software. Esri will provide to Licensee a Mixed Service at service(a7esri.com . of any cancellation, number of training days to use for Instructor -Led Training, as rescheduling, or Student substitution requirements and defined in this Small Enterprise Training Package, if purchased. receive confirmation of these change(s) prior to the class start Instructor -Led Training events occur at an Esri Learning Center or date. via. the web in a cloud -environment. The Esri software training Licensee is responsible to ensure that it adheres to the course(s) to be conducted, location, schedule :dates, and course, facility, and equipment requirements for.Esri registration requirements are set forth in the Esri Training catalog as found at htt : / /training.esri.dom /gateway/ located on . Esri's Training website ( http: / /training.esri.com All index. cfm ?fa =training0ptions. gateway courses are conducted in substantial conformity with course Students may not use audio and /or video recording descriptions outlined on the Esri Training website. Esri reserves equipment within the classroom without prior written approval the right to modify course content when necessary due to from Esri. Esri reserves the right to record a classroom software technical capabilities or limitations. training event for future rebroadcast_ ARTICLE 2— ESRI'&RESPONSIBILITIES ARTICLE 4- CANCELLATION AND RESCHEDULING POLICY ■ . Esri will provide an instructor qualified to conduct the When a Student's place in class is filled by another person course(s) as well as all necessary training materials sufficient from the same organization, a Student substitution is allowed for the number of registered participants (hereinafter at no cost provided Esri's Customer Service department is "Student(s)") on the scheduled dates. Esri will provide each notified three (3) business days in advance of the class start Student with a course manual where applicable. date. Should a Student substitution occur without three (3) ■ Esri '. will confirm .Learning Center training class scheduled business days' notification, an additional nonrefundable dates approximately ten (10) business days prior to the class transfer,and data processing fee may be assessed. start date. A Student may,transfer from one (1) scheduled Esri Learning Center class to another one (1) time at no additional charge ARTICLE 3— LICENSEE'S RESPONSIBILITIES provided Esri's Customer Service department is notified three (3) business days in advance of the class start date. .Licensee must ensure the protection of Esri's copyrights. Subsequent transfers or transfers that occur without three (3) Licensee shall neither copy or distribute nor permit a third business days' notification may incur a transfer fee. party to copy or distribute any of Esri's training material(s) Students may cancel their enrollment in a class provided unless otherwise required _by law. Esri's Customer Service department is notified Licensee must not resell seat(s) to an Esri training class three (3) business days in advance. If three (3) business days' unless explicitly authorized in writing by Esri. notification is not provided, Students may be charged the full Licensee must confirm that all registered Students meet the Student Seat fee. minimum ,prerequisites for the applicable class set forth on Esri's Training website. If .Esri is unable to conduct the training on the scheduled date, ■ .:Licensee must ensure that all Students have received Esri will notify Licensee at least three .(3) business days before confirmation from Esri to participate in an Esri training event. the scheduled date. Unregistered Students are not permitted to view or participate in a Virtual Classroom training event. Esri reserves the right to If cancellation of a training event is necessary due to Force disconnect any Student who permits access to unregistered Majeure, the affected party is released in full from the three (3)= Students. business -day notification. The affected party will either reschedule ■ Licensee must submit registrations with a confirmed payment the training or cancel the order without that affected party commitment at least seven (7) business days before the class incurring .any liability. start date.. If Licensee submits a registration without a confirmed payment, Esri will not confirm the seat reservation. - ARTICLE 5— UNIQUE TERMS FOR THE SMALL ENTERPRISE The reservation will be added to the waiting list pending TRAINING PACKAGE payment confirmation and subject to availability. US government export control laws and regulations prohibit To order training, Licensee must include training in the US persons from engaging in transactions with certain denied Purchase Order for the ELA or provide a Purchase Order as persons found on various US Government Denied Persons . required and specified within the ELA that matches the E'ri lists (e.g., US Department of the Treasury's Specially quotation. Designated Nationals List, US Commerce .Department's Where Licensee submits additional . Purchase Orders to Denied Persons /Entity List, etc.). To meet these export purchase training days -for additional year(s), any unused requirements, Licensee must submit to Esri Customer Service training days will automatically roll over. a list of the names of Students that are to attend any training A Purchase Order is required annually for each three (3) -year class. Any Student that is found on any of the various US term. Failure to submit annual Purchase Orders will result in Government Denied Persons lists will not be permitted to the forfeit of unused training. days. attend training. Licensee must assign an individual within its organization to Licensee is responsible for all Student travel arrangements. the role of Training Administrator to serve as liaison between Esri assumes no responsibility for losses from nonrefundable Licensee's organization and Esri as well as internally manage travel - arrangements resulting from denial of a Student's and authorize allocated training days. E207SETM Page 1 of 2 03/25/2011 2011 SGE7714 10/18/2011 ■ 'The training days are available for a period of twelve (12) months, commencing 'on the purchase Effective Date, and ending when all training days are consumed, whichever is sooner. ■ Esri will invoice for outstanding training expenses where applicable. ■ Training days are not transferable and not refundable for any other Esri products or services. ARTICLE 6— RESERVATION OF OWNERSHIP AND GRANT OF LICENSE Except as specifically granted in this Agreement, Esri and /or its licensors own and retain all right, title, and interest in software, data, documentation, and training materials. ARTICLE 7— WARRANTY 7.1 Esri will provide' training in - a manner consistent with the technical and professional standards of the industry. . 7.2 Disclaimer of Warranties. WITH THE EXCEPTION OF THE LIMITED WARRANTY SET FORTH IN THIS ARTICLE, ESRI DISCLAIMS, AND THIS AGREEMENT . EXPRESSLY EXCLUDES, : ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, .. WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE_ AND. NONINFRINGEMENT, AS WELL AS ANY..WARRANTIES THAT THE TRAINING IS ERROR FREE. ARTICLE 8— LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY EXCEPT FOR LICENSOR'S MISAPPROPRIATION OR INTELLECTUAL - PROPERTY INFRINGEMENT AND EXCEPT FOR INDEMNITY ASSOCIATED WITH CLIENT SITE TRAINING, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR COSTS OF PROCUREMENT OF SUBSTITUTE -GOODS OR TRAINING; LOST PROFITS; LOST SALES; BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS COMMITMENTS; LOSS OF ANY GOODWILL; OR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, HOWEVER CAUSED OR UNDER .ANY THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BOTH PARTY'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, SHALL IN NO .EVENT EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE PORTION OF THE TRAINING UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ARTICLE 9 —UCC INAPPLICABILITY Training provided under this Agreement will not •be governed by the Uniform Commercial Code (UCC) and will not be deemed "goods" within the definition of the UCC. a E207SETM Page 2 of 2 03/25/2011 2011 SGE7714 10/18/2011