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HomeMy WebLinkAbout000834 Original Contract City of Port Angeles Record # 000834 MAINTENANCE AGREEMENT This Maintenance Agreement(this"Maintenance Agreement")is entered into as of[3/17/2014)(the"Effective Date")by and between Itron, Inc. ("Itron")and[City of Port Angeles)("Customer"). Itron and Customer may each be reforred to as a"Party'and together as the"Parties." The Parties agree as follows, 1- Technical Support a. Support Services. Itron will make available qualified technical representatives by telephone,email or other remote means during its then-current normal business hours to assist Customer Coordinators (defined below) with the operation of and answer questions related to the software (the"Software") and equipment (the "Equipment") identified on Attachment A (together, the "Products"), which are covered by the services described herein (the"Maintenance Services"), Such technical support shall include, but is not limited to, troubleshooting, problem diagnosis, release or system management, and recornmendalions for fully utilizing the Products. Ilron's current Support Services contact and support hours are described In the "Itron Supports Services Contacts" document (the"Contacts Document"), which can be obtained by calling (877) 487-6602. Consistent with Section 1,c hereof, Customer will riot use Support Services technical representatives In lieu of having qualified and trained suppod personnel of Its own, b. Reld Support, Upon mutual agreement of the Parties, Itron will dispatch support personnel to Customer's location to provide technical support. Such support will be billed at Itron's, (hen-current hourly rates (with reasonable travel and living expenses invoiced at Itron's cost)unless the cause of the reported problem is found to be the fault of Itron, U. Customer Coordinators and Service Requests. Customer will identify no more than 2 supervisory level employees(each a"Customer Caordinator") for each itron product line, as identified in the Contacts Document, to serve as administrative Ilalsons to Itron for all matters pertaining to the Maintenance Services for such product line. Customer Coordinators shall report problems with Software or Equipment (each such report, a "Service Request") as soon as practicable for entry into Itron's support tracking system. Before a Customer Coordinator interfaces with Itron, I lie or she will attend training sessions offered by Itron to ensure that he or she is (a)knowledgeable about the operation of the Products, and (b)qualified to perform problem determination and remedial functions with respect to the Products. Such training sessions will be at Itron's then-currmni rates. Customer will be solely responsible for all travel and other expenses incurred in connection with such training sessions. if Itron notifies Customer that additional training is necessary, Customer will promptly ensure that all applicable employees and/or Customer Coordinators receive such training. 2. Software Maintenance a. Definitions. "Error"means a failure of the Itron Software to substantially comply with the applicable published Itron specifications. "Fix' means a correction of an Error, Including a work-around, in order for the Itron Software to function in accordance with the applicable published Itron specifications. "improvement"means an update,modification, enhancement,extension, new version(regardless of name or number), new module, or other change to the Itron Software that is developed or otherwise provided by Itron. "Itron Softwaro"means Software Identified on Attachment A as"Itron Software," "Software Release" means a collection of Fixes or Improvements made available to Itron customers(either via physical media or download access). b. Fixes, Itron shall make commercially reasonable efforts to provide f=ixes for .Errors identified In a Service Request in accordance with the Response Time, Effor-i Level, and Escalation Path guidelines (together, the "Service Levels") outlined below for the applicable Severity Levels identified therein. Ilron's obligations with respect to Service Levels are contingent upon Customer (1) devoting the same level of effort to resolving the Error as Is required of Itron, (l1) responding to requests made by itron within the applicable I Response Time, and(iii)assigning its most qualified personnel to help Itron address the Error. i 7/11/2013 1 5ovrrity l_ovr( Igo�liofine''I ImrS . i Cf(ort Lpal rinc?Gsc:ilgt{on Putli-- t��... - Severity Love •t, Aft Crror, wportcd by During after-hour periods, ilron will Man\9111 make diligent efforts on a 24x7 basis",or as otherwise "phone contact, for which Ihoro Is no wort(- respond to a orl(Ical support voles agreed by the Partlos,A SR shall be ascalated to Itron's TSS around,v;hirh causes tho Produott/Software mossagos within iG minutes by a Management Team If a Fix Is not provided within t business or a critical business function /process of return call to Customer, which will day of Itron's receipt of the Customers call end creallon of the the Itron system to be unavai)abto, validate receipt of 1110 critical support SR. call and begin ilia SR process, "24X7 support for Severity Level 1 Errors Is riot currently available for Ifron Meter Products,Energy Forcoastlng and load j 1.3overity i errors must be reported by Research Products,and Distribution Products, Phone to Initlato the Severity 1 response Durlog reguinr business-hours Itron process, SRs Initiated by email or web will begin the SR process during the Interface are logged as a Severity 3 until Initial call. revlewad by (iron Technical Support Sorvicos and validated as a higher priority. Following the start of the SR process i Van will respond to Customer within 4 business hours with an Initial rosponno. Following the initlaf roaponso to tho SR, Ilron will update Customer at three hour Intervals each day for unresolved SRs, or as othorwlso agreed by the Parties. Customer will respond to an Ifron Inquiry or request within throe hours, Soverliy Level 2. An Error other IlnF,n a Ifron v:I;l respond to the Customer Itron will make diligent efforts duiringnotmal business hours, Severity Level i Error for which there Is no within 1 business clay and will update SRs shall be escalated to Itron's T$S Managermont'Yearn if a work-around that results in a loss of access the SR at loast ovary olhor day. Fix Is not provided within 3 business days of Yrol's receipt of to iho Software of that causes features of Customer will respond to an l(ron the Customers call and oreatlon of the SR, the Software to not work, Inquiry or request within t buslnass day. *Severity 2 orrors must be reported by phone to inlUah: the Severity 2 response process, SRs initiated by small or web ir*Aaco are logged as a Geverlly 3 until reviewed by Ifron Technical Support Services and validated as a higher priority. See rity Ciii%ef 3;-An'Effii ol}i§r titan u 'ItY��.1III`ltapoirt lo-llit3-SR�Vllhin2 -loon will-haTa'teciiril'631-te}�res�Ttiatlu�m�it6-dill g�if�ifolts' Sevority Level 1 or Severity Level 2 Frfor buslness day:;. during normal business hours, that has a material htipact on tho j functionality of ilia Software(e,g„a feature Is hot worfcfng as derwmsnfod Guf a t,ork�"- I around is available end significant business functions are not matorlally Impaired). sov©rity Lovol A, An ror other than a Itron will respond to the SR wl(hfn s Itron\9111 have its support roprocentalives devote commercially Severity Levol 1, Severity Level 2 or buslness days, or es olhorwlso ionsonablo efforts during nonnal buslness hours. Sovority Level 3 tirror, agreed by the Parties, Sevority i.ovol 5. �A SR fur an N!A i he SR will be evaluated for future product onhnncenient.If the enhancement or now funcllonallty enhancement or now functionality requires more Intrrtedlato attention, Ilron will ongage Ilia Professional SaIvIcas Group to create a oustomizod proposal aI Ilron% OTti-current services rates. o. lmprovennrnt,. I i Ifron shelf provide Improvements, if any, at its then current price for such Improvements (or at no chargo if such Iniprovonnonts are rnade avallablo to itron customers generally at no charge), cl, Software Releases. L Release Numbering Convention, Fixes andlor Improvements fire made available to customers through periodic Software Releases, For Informational purposes, Itron's current proctice (which may be changed at any time in 1(ron'e discretion)Is to provide Releases using tho numbering convention"XX.YY,77.." Tho"XX"In Ikon's numbering convention refers to a"S'ysivm Release,"which Is a now version of the Item of Itron Software. A System Release may Include Fixes, Improvements or inlerfaces to new functional modules or platforms not previously supported by Itron. « The"YY"In Itron's numbering convention refers to a"Service Pack Release,"which Is an update to a System Release, Service Pack Releases may include Fixes or Improvements and are provided to Itron customers generally on a periodic basis, « 'the''ZZ"In Itron's numbering convention refers to a"Hof P1x Roloaso,"which Is in unscheduled reloase providod to ono or nioro customers as a short-torte,temporary fix to a Severity Level 'i Error, lhthllo not uillizod by all Ifron i 'lliil2o'I3 2 I i I Software product lines, Hot Fix Releases are not made avallable to itron customers generally but may be Included in tho next scheduled Service Pack for general release, it, Support for Releases of Itron Enterprise Edition and Openway Software This subsection applies only to)Iron Enterprise E=dition and OponWay soilware produc(s. Maintenance Services for Itron Enterprise Edition and OponWay software products shall be limited to the most recent System Release and the prior System Release (and the most current Servioe Pack l Release associated with such System Release). Customer wfll test and lnsiall Service Pack Releases associated with the System Release in use by Customer within 12 rnonths of such Service Pack Releases being made available to Customer, Customor will upgrade to the latest System Release at least every hventy-fora' (24) to thirty-slx (36) month,,. At Customer's request, Itron may provide Release insfailtion servlcen at its then-current hourly rates. Iron may elect to provide Maintenanco Services for an unsupported Release of Itron Sof(waro at Its then-current rates for oustomer support. ill. Support for Releases of all Other Itron Software:. This subsection applies to all Itron Software other than Ilron Enterprise Edition and Open Way Software products. Maintenance Services for all Itron SM(ware othor than ilron L"----nterprise Edition and OpenWay software products shall be limited to the most recent Systern Release and the two prior Service Pack Roleasos. Customer will test and Install Systern Releases and Sorvlcoo Pack Releases within 12 mon((7s of such Releases being made availnbte to Cus(olr,or, At Customor's re;ques(, Itron may provide Release installation services at Its then-cuneni hourly rates, Inon may oloct to provide Maintonance Services for an unsupported Release of Itron Software at Its then-current rates for custorner support. e. Mandatorl Rovlslon, In the event that Itron,In Its sole reasonable dlscrelion,dotermines that any Itron Soflwnro(u,a may(as applicable)be;(1)subject to a maierial Error; (11) the subject of a material security breach; or, ((II) be subject to a third party infringement claim or suit of any kind, itron may lssuo a mandatory revision in correction of one or more of these issues (a "Mandatoty Revision'), Itron disclaims all liability and obligations that arlso duo=to,or 111-0 result of,Customer's failure to test and Install a Mandatory Revision in a timely fashion. f, InferopetAl>lllly. Itron makes no representation or warranty regard6lg the ablilly of the Itron Software to Intemperate with thirst patty hardwaro or software other than software or hardware Identified as compatible with the Itron Software In itron's published documantat(on for such Itron Software(the"Documentation"), y, Documentation and SofAvar©Wbraty. Itron will make an electronic copy of ilia Documentation avallable to Customer at no additional charge via physical media or download access, Itron will maintain a copy of Its most recent supported voralon of the exocutablo Itron Software to be made available to Customer as necessary in the event of corrupted or Inoperative Itron Software, i It, Rostoting Software to Mabtienance Solvlces, If Customer declines Maintenance Servicos aflor fire end of warranty or discontinues Maintenance Services for any Itron Software,and i (hereafter wishes to resume Malntenance Services for the most recent Release of such ih'otn Software, Customer shall, prior to I -- recolving sucirk a(ntenance-SetVlces- not ify-Itrorrin-wri fin g--of-Its-request-for`Malrttenan ce-Sery ice s-and-pay-I Ito n's-then=curre tit-re- in;tiailon fee, h EXCiUsfw7s, Itrow shall-have°no-obligation-to-Custornerto fire extent any Itron-Soft ware-is adversely affected-by (t)-us0 oP(h "1lralrSCitwar�in combina(ion will) other softwaro, equlprnenl or communications networke, that are not referenced in the Documentation; (11) any modification to the software or operating environment that Is made other than through the fault of Itron,after the Effectiva Dato; (Ili)the use of a version of tiro Iron Sofiwaro that is not supported by Iron;(iv)Customer's failure to implement a Fix provided by Itron; (v)the I operation or maintenance of the Itron Software other than through(he fault of iron;(A)viruses introduced through no fault of Itron;(vll) use of tho (iron Software other than as permitted by llron, Including Software operated on Equipment that has been sorvicod or repaired by a third party that is not Ikon certified; or(vili)Customer's failure to perform Customer responsibilities in accordance with this Agreement, j. Custornur Responsibil!(ioa, f I. Remote Communicailons. Customer will obtain, Install, operate, and maintain remote cornmunicatlons software and equipment to a manner that will allow for remote access to the Soft ware. Cuslotner will make such remote access available to Itron representatives,as necessary,for remote dlagnosis and troubleshooting of the Software, II. System Configuration and Administration. Customorwlll ensure that its equipment,system peripherals,operating system,and data communications environment associated with the Software Is configured, operated, and maintalnod In accordance with the Documeniallon and any applicable third party documentation. These administrative activitles shall include but not be limited to; checking audit logs,clearing discoverod exceptions, and performing dally, weekly, and monthly operational tasks and system responsibilities. Customer will consult with Itron prior to making changes that may affect the oporatton of the Software. Ill. Network Adt-ninistralion, Customer will monitor and rna(ntaln, repair, replace and upgrade Its local, and wide area network components (if any)—including network servers, network clients, network hubs,routers,modems,and other software components necessary for efficient and rellablo network operations associatod vvl(h the Software—to ensure continued conformance with the Documentation, In addition, Gustornor will administer rolated host namos, hntomot Protocol addresses,network interfaces,access,security,communications,and equipment nnd'software version control. Iv. Dntabaso Administration, Customer will administer the agreed upon databaso(s)associated with the Software, Including hardware and software components,In accordance with the Documontation or any applicable third party documentation, which administration shall Include, monitoring the 7/1 IM 3 3 database server,backing up electrical povwor sol1re05, and configuring and administering of database schoma, application Inlorfaees, networking operaiing systom, communications, and file transfer software, Customer will maintain database illes (e,g„ truncate, cleanup,and delete files conslstent.with Industry standard pracilces)and perform regular data backup and data archiving, V. Data(review, if Ilion detormines that it Is necossary to evaluate Customer data in order to reproduce error condl(lons not reproducible with Itron's standard Iasi data sets,Customer will provide Bien with access to such data, Aran will manage such data in a secure rnannerwhilo in use and deletr, tho data from Ilron systems upon completion of the investigation. Itron shall not be liable for any delay or failure to rosolvo tho probiom If access to such producflon data Is denied to Ilion, 31 Equipment Maintenance a, Provontivo crud Corrnativo Malnlenanco, Upon receipl of an item of Itron Cqulpmant (defined below) for which Customer has subscribed to receive Maintenanco Sorvices ("Covor(.d Equipmoni'), itien shall (1) perform the preventive Maintenance Services that It determines Is reasonably necessary to rllalntaln such F..qulpnlont In Operational Condition (defined below), and (11) dingnose and correct any failure in such Equipment as nocessary to meet Opera(lonal Condition (excluding minor cosmetic doilvioncloo such as blemishes, dents or scratches), The term "Itron Eguiprnont" refers to Equipment identified on Attachment A as 'Ilion Equipment," The term "Operating Condition"means capable of porformanco in accordance wl(h itron's published specifications, L, Maintenance Procedures, Cuslomor shall Inl(late a request for Maintenance Services for an Item of Itron Equipment by delivering the Item to the applicable Itron addross Identified on the ltron Equipment repair Table (the "Repair Table"), which can be obtained by calling (077)487.6602, at Gustorner's expense and in accordance with the applicable return material authorization procedure, Upon reeelpt of an Item of ilron Equlprnonl With the rnqull'od information, itron shall assess the Itonl to dotorrnino whether it Is Covered rqulpment and whether the maintenance requested is Included within fire Maintenance Sorvlces end not otherwise excluded from coverage as provided herein, If the Item of Ilion(=quipment is Covered I_qulpment and Ilia malntonancc roquoslod is Included In file Maintenance Services,Itron shall provide the applicable Maintenance Services and shall make commercially reasonable efforts to return the Item of Itron Equlpmen(to Customer at Itron's expense within the applicable iumaround Idontifled on the Ropair Table, Itron Equipment that Is not Covored Equipment or maintenance or suppori that Is requested but not includod in the Malntenance Services shall be addressed as described In Seotlon 3,d hereof, c, Exclualons, The L'..quipment Maintenance Servicos described herein do not Include repairs related to: 11 damage duce to ox(ornal causes, including accident, abuse, misuso, Inndc:quato maintenance, problems with electrical power,acts of God;usage not in accordance with product Instruetlons or in a configuration not approved by Itron; ill _servlc(;(including installation or do-Installation)not performed or authorized by itron; _ ill. use of parts,configurations or repair depots not cortlAed by)iron; iv, Cusiomor's failure to perform Customer responsibilities in accordance with this Agreement,including caring for Products in accordance with user documentation;or V. Products for which Itron has disconiinumd Maintenaneo Services pursuant to Seepon 6 heroof, j d, Estimation Fees Itron will provide Customer with a prlco quoto for tho estimated cost, Including labor,materials and shlpping,far any repairs that are requosted but not Included In tho Maintenance Services (whether becauso iho item of equipment Is not covered by Maintonance Services or because the nature of the repair Is not Included In Maintenance Spikes), If Customer elects to have Itron proceed with iho requested maintenance on any such item, Bran shall provide such services at Its thon-torrent rates, If Customer elects not to . proceed with the requested repair,Itron will return the Item of equipment at Cus(ornor's expense, liron may charge Customer Its then- curron(handling,Inspection and shipping foos for any such returned equipment, e. Addlog/Resfodog Equipment to Malnlonance Services, Following the Effective Date, additional Itron Equipment purchased by Customer, of a similar typo and model already covered by Maintenance Servlcos,shall automatically Lo deemed to be Covered Equipment following expiration of the warranty for suoh Equipment. If Customer dorlhles Equipment coverage after the end of warranty,dlscontinues Maintenance Services for any Covered Equipment or has E=quipment serviced or repaired by a third party that is not Itron corliflod, and thereafter wishes to add Such equipment as Covered Equipment, Itron may, prlor to such equipment being included as Covered Equlpment,(i) Inspect such equipment at Its lherl-current rates to determino whether if is in Operating Condltlon and/or(ii) charge Its then-curront re-coitl0callon fee,In addlilon to the Equipment's first corm malntorlance fee, L CustomerRosponaMINos, Itron shall make available, and Customer shall obtain, a copy of Itron's user dooumoritatlon for Items of Covered Equipment and Customer shall perform regular preventive maintenance for each such Item b1 accordance with such documentation. Customer shall Arno scoop accurnto records of Equipment serial numbers and loo, to Assist Itron with the Maintenance Services. g, LoanerEqulpmoot Prognom, Subject to the requirements below, Itron shall make commorcially reasonable offorls to provide Customer witty a Mobile Collector or Handhold unit, as applicable,for the Customer to use (each an item of";Loaned Equipmenr')while a Mobile Collector or Handheld unit, as applicable, that Is.Covered Equipment is receiving Maintenance Services. Itron shall provide Loaned Equipment if all the following criteria are satisfied; 7111/2013 4 �k E I. Customor has maintained an Inventory of spare Mobile Colloc(om or Handheld units equal to at least 10 percent of (he number of Mobile Collectors or, Handheld units deployed In Customer's service territory (with at least one Mobile Collector)and such Inventory has been depleted; it. itron has provided preventive Maintenance Services for each of Customers Mobile Collectors or Handheld Devices(as applicable)that tiro Covered Equipment in the 12-month period prior to Customer's request for Loaned Equiprrrenl;and iii, itron Is unable to return the Mobile Collector or Handheld Devices, as applicable, receiving Malotenance Services within the applicable turnaround time set fortis on Attachment A, IV. Loaned Equipment will remain tho property of Itron and shall be returned to Itron promptly upon receipt of the corresponding Item of Itron Equipment, For Loaned Equipment that is not returned within 14 days from shipment of (ho corresponding Rom of Itron equipment, Itron may chargo a late fee equal to 10 percent of the then-current list price for the Ilom of Loaned Equipment for each 30 day period during which the Item of Loaned Equipment remains unreturned, Kroll shall pay the cost of del:voring Loaned Equlpment to GUS(emer and Gustorner shall pay the cost of returning loaned Equipment to itron. 4, Cornpensatlon and payment Delh7iflons "Anruml Adjustmonf'means[troll's standard price Increase, "Annual Free"means[he annual fee set forth on Attachmont A hereto for each category of Products identified thoroon Pius the Annual Adjustment,If any. The Annual Poo for Maintonanoe Services to be provided for any partial Maintenance Year(Le.,for Products With a fAmIntenance Commencement Date char fc,lis after,the boinning of the Maintenance Year)shall be prorated based on the applicabio nurnbor of months Customer is to receive Maintonance Services during such Maintenance Year, "Maintenance Commencement.Date"moans 1110 date for commencement of the Malntenanco Services for a Product Identified on Attachment A hereto, "f6Maintenanue Ycral'means any period of 1 year during the Term beginning on the Effective Date or any anolversory thereof. b, Gornpensoflon and lnvofclng, As compensation for ilia Maintonance Services,Customer shall,in advance,pay to I(ron fine Annual Foe for each Maintenance Year In which it receives Maintenance Services. Itron shall invoice Customer for Maintenance Sorvicos to be provided during the first Maln(enance Year as soon as practicable following file Effective Date, For Maintenance Services provided during any subsequent Maintenanco Year,Including Maintenance Services for newly purchased Products,Itron shall provide Customor with a renewal notice at lonsf 100 days prior to the commencement of each Maintenance Year. CUMOme1' may discontinue Maintenance Services for a Product by providing Itron with written notice of non renewal for such Product no loss than 90 days prior to the commencement of any subsequonl Maintenance Year, Approx'matoly 20 days prior to the commencement of any subsequent Maintenance Year,Itron shall provide Customer with art involco for'the Annual t=ee payable by Customer for the forthconning Maintenance Year, Itron may, In Its discretion, invoice Customer for Maintonance Services for a Product that is added durin ttho,cqurse of,any Malfit. ell _Year as soon as svloITProduc�'hasli`e©n adaod or zaCfll bcglnnrnq'�ho next rJl�Trdonance Year-� _ i c, Pa}grr©nt, Invoices will be due and payablo 30 days folloving the date of invoice,_For Involcos not paid within 30 day,of the Inva c.�iQ(r3,�n add'irion to of n%r rernedfes to which trop may be entitled,I ran may cha rge City{omer a isle tea of 1 percent per month applied against undisputed overdue amounts, Customor shall also be responsible for collection costs associated with late payment,If any,Including reasonable attorneys'fees, Fees paid pursuant to this Maintenance Agreement, including the Annual Pee, do not include taxes. Customer will be responsible for and pay all appllcablo sates, use,excise,value-added and other taxes associated with the provision of file Maintenance Services,excluding taxes on[troll's income generally, If Customer Is a tax exempt entity,or pays taxes directly to the state,Customer wilt provide Itron with a copy of its Tax Exemption Certificate or Direct Pay Permit, ns appllcablo,upon execution of this Agreement. No endorsemont 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 satlsfacllon, Customer shall pay Ertl amounts duo under this Agreoment in lawful money of the United States,unless otherwiso provided In Attachment A. 5. Term and Termination a. '!'61717. The loan of this Malntenanco Agreeanen( ("Term") shall corronence upon Rte Effective Date and shall continue unless and untll torrninatod In accordance with this Sec(ion. b. Tonminaflon, Either party may terminate this Maintonanco Agroennent effective as of the end of any Maintenance Year by giving the other Party written notice of termination at least go days prior(o the end of such Maintenance Year, If either Party commits a material breach of or default under this Maln(enanre Agreement or any agroaniont between the Parties related to fits Maintenanco Agreement, then [he other Party may give such Party written notice of file breach or default(Including,but not necessarily limited to,a statement or the facts rela(Ing to the breach or default,tho provisions of this Maintonance Agreement that are in breach or,default and the action required to cure file breach or default)and,at the notifying Party'o election,this Maintenance Agreement shall terminate pursuant to this Section If tho breach or default Is not cured within 30 days after recelpt of notice(or such Inter date as may be specified In the notice). 6. Effect of Temd natlon, Itron shall not be obligated to provide any Maintenance Services after the and of the Term. If either Party terminates the Maintenance Agreement for'a reason other than a lerminetion for breach or default or if Itron terminates Maintenance Services for'one or more Products,CUS(emer shall be entitled to a prorated rofund of tho Annual Fee, d. End of Suppo✓t. Itron may discontinue Maintenance Services for any Cquipmont or Software,effective as of the end of the current Maintenance Year, by giving Customer written notice of such discontlnuanco no toss than 90 days prior to the end of such Maintonance Year, At 7111/2013 6 Customer's request, Ilion may olect to provido custom support for prod ucis for which Maintenancc Services havo boon disconilnuad al Itron's then-careent rates. O, Survival Any Section of this Maintenance Agreement, which by its nature is Intended to survive torrnlnatlon or expiration, shall survive the termination or expiration of this Maintenanco Agwonnent, G. i�1iscellaneous tr, Disctalmer of Walrardles, EXCEPT AS EXPRESSLY SET FORTH IN THIS MAINTENANCE,AGREEMENT, ITRON DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MIERCHANTABILITY OR FITNESS FOR A PARTICUfAR PURPOSE AND ANY IMPLIED WARRANTY ARISING OUT OF ANY COURSE.OF PERFORMANCE,COURSE OF DEALING OR USAGE OR TRADE PRACTICE, b, No Consequentkal Dalnagos, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL ITRON BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR COVER OR FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION 017 DATA OR LOSS OF REVENUE, SAVINGS OR PROFITS)OR EXEMPLARY DAMAGES.EVEN IF ITRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, c. Limitation of Llabi ity. i`'OTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,THE AGGREGATE LIABILITY OF ITRON AND ITS AFFILIATES AND ITS AND THEIR OFF=ICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES, ARISING IN ANY WAY IN CONNECTION WITH THIS MAINTENANCE AGREEMENT WHETHER UNDER CONTRACT TAW, TORT LAW, WARRANTY OR OTHERWISE—SHALL NOT EXCEED THE TOTAL.AMOUNT PAID BY CUSTOMER UNDER THIS MAINTENANCE AGREEME=NT DURING TIME MAINTENANCE YEAR IN WHICH THE CAUSE OF ACTION GIVING RISC TO THE LIABILITY AROSE, ITRON SHALT_NOT BE LIABLE FOR ANY CLAIM MADE THE=1;U1-1Jr0T Of-A LEGAL PROCEEDING MORE THAN 2 YEARS AFTER THE CAUSE OF ACTION ASSLRTED IN SUCH CLAIM AROSE, dl Excused Po ifornraoce, Itron shall not be liable tor, or be considered to be In breach of or default under,this Maintenance Agreement on account of any delay or failure to perform as roqulred by this Maintenance Agreoment as a result of Any cause or condition beyond ttron's reasonable control, o. Noflcos, Any notice required or perrolited under this NMintonance Agreement or required by law must be in writing and must be delivered in person,by facsimile,by certified mall(return receipt raquested),or by a nationally rocognlzed overnight service with all freight charges - prepaid,to.the-address-set-forth-on--the-signature-page-.hereto,—Noflccs-w,III-be-doemeei-to-havo-been given atdho-ilrtmP-of actual delivery, If in person, or upon roceipt(as evidenced by facsimile confirmation,return receipt or overnight delivery verification), Either Pnrty may change Its address for notices by written notice to the other Party In accordance with this Section, Noiwiihstanding the foregoing, nollco of ronowal or non renewal of Maintenance Services shall be sent to the email or other address set forth on the f. Assignment. Customer may not assign of, transfer its Interests, rights or obligations tinder this Maintenance Agreement by written agrceoment, mender,coiisolidallon, operation of law or olhonviao without the prior written consent of an authorized oxecutive officer of Ilion. Any attempt to assign this Maintenance Agreement by Customer shell be null and vold. fJ. Nonvvslver, Any failure by either Party to Insist upon or enforce performance by the other Party of any of the provislons of this Maintenance Agreement or to oxerolso any rights or rarnedlos under this Maintonanco Agreemont or otherwise by law shall not be construed as a waiver or rolinqulshment to any extent of such Party's right to assert or rely upon any such provision, right or remody In that or any other instance;rather the provision,right or remody shall be and remain in full force and effect. h. Coveminrg Lnwi, This Maintenance Agreement and performance hereunder will be governed by and construed In accordance with the laws of the State of Washington without roferenco 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 AGREPihGNT, L ConfJdenti«llty, With respect to any information supplied in connection with this Maintenance Agroernent and designated by either Party as confidential, or which ilia reoiplont should reasonably believe to be canfidontial based on Its subject matter or the circumstances,the j roclplont agrees to protect the confidential Informatlon in a reasonable rind appropriate manner, and to use and reproduce the confidential Information only as necessary to perform its obligations under this Maintenance Agreement an(]for no other purpose, The i obligations In this Section will not apply to infonnatlon that Is; (1) publicly known; (11) already known to the recipionl; (111) lawfully disclosed by a third party; (iv)indepondontly developed;or(v)disclosed pursuant to a legal roquiroment or order. The recipient may disclose:tho confidential Information on a need,to•know basis to Its contractor's,agents and affiliates who agree to confidentiailly and non-use terms that are substantially similar to!hose terms. J, Intellectual Properly. Between It-on and Customer,all patents,copyrights, mask works,trade secrets, trademarks and other proprietary rights In or related to any product, software or dollvorablo provided In connection with the Maintenance Services are and will remain the exclusive properly of itron. Any modification or improvornent to an Itron product or deliverable that is based on Customer's foodback scroll be the 7/91/2013 e i oxcluslvo property of itron, Customer will not tnRo any action that Jeopardizes Itron's proprietary rights nor will it acquire any right in any such product,softv,are or deliverable or Won's confidontlal Information other than rlghis granted in this Maintenance Agrooment, k, E-Wht-Agmerrront, This Maintenance Agreement constitutes file entUe•agreemont between(he Parties with respect lo Ifs sub]oct meter and suporsedos any and all prior agroemon(e betwoon ltron and Customer related to tho Malntenanco Servlcos and other Items furnished under this Maln(onance Agreement, No amondmont,modificallon or wolvor of any of the provisions of this Maintenance Agrooment shall bo valid unless set forth in a written instrumont signed by the Party to be bound thereby, (Signature Page f=ollows] i I I I i i i i i I %11 i12U�3 7 i i k Agreed to and accepted by: ltron,Inc: Signature' Signature:: Print name: Richard G Hostetler Prinf 11,1MO: RIOURD CHRISTENS EN –VIC O PrOSICIOnt,Finuilog Tltlo;CLIStOITIOl'SeivIce Varinger Title; Itron,Inc. Date; 5 A-2 I 0� Billing Contact Information Addrorm: Name: C1(y of Port An, geles— ltron,Inc. Address: Attn:Rick I lostotior Attention:General Counsel 2111 North Moller Road PO BOX 11 Liberty Lake,WA 090,19 Port AngoW,WA 98362_-_- Phone: 360-417-4623.-------.----. Emil: ri)ost()tl(Oicifyofpa,us,------- Renewal Notloo Contact Information Narne: Address: -—------------ JS Purchaso Order Number: [8rpalurn Page to 140)(emanco AgreaIT101111 2111;arch I,Wa-5 Ru3cr (.it>cri lake,'1r`ashinttlur 95019 M,920900 Tel 509.891,3505 fax SUU.fl35.54&1 mviv.Itn»r,Cpnr ATTACHMENT A City of Port Angeles ANNUAL PRODUCT SERVICE CI-IARGTS First Year Iten) A. Qty First'Year Phone Supl3ort _ _ _� Phone Support 1 1 MVRS B-First Year MVRS Softwar'e/Pi)One Support 10,001-25,000 Meters 1,080.00 s 1,080,00 Annual Maintenance I Item B, Qty Software Support/hlosting Price I 1 MRS)B-M VRS Software/Phone Suppal1 10,001 -25,000 Meters 2,0011,00 S Software Subtotal $ 2,1104.00 i Annual Maintenance Item C. Qh' Hardware Support After Initial Warranty Price 1 3 FC3-FC300,BT b 990.00 2 1 FC3 MUM DOCK-FC300 Multi Dock $ 192,00 I Hardware Subtotal S 1,192.00 Software&hardware Total $ 3,186.00 Comments; I i Tire Maintenance Commencement Date for Itron Software is the first day of the month following shipment or electronic delivery by Itron,except the Maintenance Commencement Date for MV-RS Sofhvare is the warranty expiration date. The Mau)tenance Commencement Date for In-on Equipment is the warranty expiration date, i ""'This is not an invoice" f'riee.s YtriiB for 90 Aty.s 3/24/2014 Anachmcnt A Pricing Annual USIMa062513 i I