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HomeMy WebLinkAboutContracts & Agreements_85-2020 esn ; C3i SA'k4ERE Enterprise Agreement for Term Licenses Enterprise Agreement No 00282235 0 This Enterprise Agreement including the documents listed below("EA"), is between City of Redlands ("City"), with its main offices located at 35 Cajon Street, Redlands, California 92373, and Environmental Systems Research Institute, Inc ("Esri"), with an Effective Date of May 3, 2020 This EA provides for the licensing and Deployment of certain EA Products, delivery of EA Maintenance, and provision of Esn User Conference registrations and any additional services as specified herein This EA is composed of the following documents, which are incorporated herein by reference 1 Enterprise Agreement signature page(s) 2 Enterprise License Terms and Conditions including • Appendix A—Products and Deployment Schedule • Appendix B—EA Fee Schedule • Appendix C—EA Points of Contact 3 Master Agreement The parties acknowledge that they have read and understand this EA and agree to be bound by the terms and conditions contained herein This EA constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous agreements proposals presentations understandings and arrangements between the parties relating to such subject matter Any modifications or amendments to this EA must be in writing and signed by an authorized representative of each party ACCEPTED AND AGREED ENVIRONMENTAL SYSTEMS CITY OF REDLANDS RESEARCH INSTITUTE. INC (City) (Esri) By' By / fly Authorized Signature Authorized Sign at Printed Name Paul W. Foster Printed Name Chris Johnson Manager, Commercial &Government Contracts Title Mayor Title Date May 5, ?No Date 5/1/20 ATTEST. atte-eiGis flue Donaldson, City Clerk E512G Page 1 of 11 February 4,2020 ENTERPRISE AGREEMENT TERMS AND CONDITIONS ARTICLE 1—DEFINITIONS All definitions in other parts of the EA will have the same meaning in this Enterprise Agreement Terms and Conditions In addition the following definitions apply to the EA • "Case(s)" means a failure of Products to operate according to the Documentation where such failure substantially impacts operational or functional performance • "Customer(s)" means City For avoidance of doubt, the definition of Customer will not include consultants or contractors Customer(s)must not include persons or entities ineligible to receive or have access to Esn products or services by operation of law, including US export control laws, decrees, orders, rules, regulations policies riders conditions or provisos • "Deploy," "Deployment,"or"Deployed" means to redistribute, or the redistribution of, the EA Products (and their related keycodeslregistration files), or their having been redistributed, by Customer during the term of this EA for installation and use by Customer • "EA Fee"means the fee set forth in Appendix B—EA Fee Schedule • "EA Maintenance" means Tier 2 Support, updates, and patches provided by Esri for EA Products and Rolled-In Software - "EA Products" means the Products identified in Tables A-1 and A-2 of Appendix A—Products and Deployment Schedule EA Products do not include unit-priced item(s) or Esn technology that may be embedded in third-party products purchased by Customer • "Effective Date"means the date the EA commences and the start date for all licenses, regardless of when an Ordering Document is provided by Customer ■ "Master Agreement" means the Master Agreement, Products and Services (E204) incorporated by this reference (Attachment B master agreement-full pdf) • "Rolled In Software" means Products (excluding Term licenses or subscriptions) of the same type as EA Products that Customer acquired for use prior to the Effective Date, that are current on paid maintenance (as shown in Esn's customer service records), and that receive EA Maintenance during the term of the EA If this EA is extended or renewed, Rolled-In Software shall include EA Products Deployed prior to the then-current renewal period • Technical Support' means a process to attempt to resolve reported Case(s)through error correction, patches, hot fixes and workarounds replacement deliveries or any other type of Product corrections or modifications specified in the most current applicable Esri Maintenance and Support Program ■ "Tier 1 Help Desk" means Customer's point of contact from which all Tier I Support will be given to Customer - "Tier I Support" means the Technical Support provided by the Tier 1 Help Desk as the primary contact to Customer in the attempted resolution of reported Case(s) - "Tier 2 Support"means the Technical Support provided by Esri to the Tier 1 Help Desk when a Case cannot be resolved through Tier 1 Support ARTICLE 2—GRANT OF LICENSE 2 1 Grant of License During the term of this EA, Customer's use of the EA Products is subject to the Master Agreement and any additional terms set forth in this EA Rolled In Software will be licensed in accordance with the Master Agreement 2 2 Beta License Beta licenses are not available under this EA as EA Products 2 3 Term License Esn grants Customer a Term License to EA Products Customer is only authorized to use EA Products during the term of this EA ARTICLE 3—SCOPE OF USE 3 1 Additional Permitted Uses For the term of the EA, Customer may copy and Deploy the EA Products to Customers up to the quantities of licenses granted in Appendix A Customer may transfer redistribute, or Deploy E5126 Page 2 of 11 February 4 2020 the EA Products within the continental United States, Hawaii, Alaska, and US territories, excluding Puerto Rico and the US Virgin Islands 3 2 Uses Not Permitted a Customer shall not use the EA Products outside the United States or its territories or possessions without the prior written permission of Esri and agreement on additional fees, if any Any such export will be subject to US Export Control Regulation requirements of the Master Agreement b Customer shall not transfer, redistribute, or assign EA Products to any third party without the prior written permission of Esn 3 4 Consultant Access. Customer's consultants or contractors may use EA Products in accordance with the Master Agreement Customer may not permit its consultants or contractors to install EA Products on consultant, contractor,or third-party computers or remove EA Products from Customer locations except for the purposes of hosting the EA Products on contractor servers for the benefit of Customer ARTICLE 4—MAINTENANCE 41 EA Maintenance EA Maintenance is included in the EA Fee Rolled-In Software and EA Products will receive EA Maintenance,provided that standard maintenance is available for each item EA Maintenance includes benefits specified in the most current applicable Esri Maintenance and Support Program document(Attachment C standard-maintenance pdf)as modified by this Section 4 1 a Tier 1 Support Provided by Customer (1) The Tier I Help Desk will provide Tier 1 Support to all Customers (2) The Tier 1 Help Desk will use analysts fully trained in the Products they are supporting (3) At a minimum,Tier 1 Support will include those activities that assist the user in resolving how-to and operational questions as well as questions on installation and troubleshooting procedures (4) Tier 1 Support analysts will be the initial points of contact for all questions and Case(s) Tier 1 Support analysts shall obtain a full description of each reported Case and the system configuration from Customer This may include obtaining any customizations code samples, or data involved in the Case The analyst may also use any other information and databases that may be developed to satisfactorily resolve Case(s) (5) If the Tier 1 Help Desk cannot resolve a Case, an authorized Tier 1 Help Desk individual may contact Esn for Tier 2 Support The Tier 1 Help Desk shall provide support in such a way as to minimize repeat calls and make solutions available to Customer (6) Customer may assign named Tier 1 Help Desk individuals up to the quantity listed in Appendix B These individuals will be identified through the My Esri portal and will be the only individuals(callers) authonzed to contact Esri directly for Tier 2 Support b Tier 2 Support Provided by Esri (1) Esn shall log the calls received from Tier 1 Help Desk individuals (2) Esn shall review all information collected by and received from Tier I Help Desk individuals including preliminary documented troubleshooting provided by the Tier 1 Help Desk when Tier 2 Support is required (3) Esn may request that Tier 1 Help Desk individuals provide verification of information, additional information,or answers to additional questions to supplement any preliminary information gathering or troubleshooting performed by Tier 1 Help Desk (4) Esri shall attempt to resolve Case(s)submitted by Tier 1 Help Desk by assisting the Tier 1 Help Desk individuals and not Customer (5) When a Case is resolved Esri shall communicate the information to the Tier 1 Help Desk individuals, and the Tier I Help Desk shall disseminate the resolution to Customer (6) Esri may, at its sole discretion, make patches, hot fixes, or updates available for downloading from Esri's website or, if requested, deliver them on media E512G Page 3 of 11 February 4 2020 ARTICLE 5—ORDERING,ADMINISTRATIVE PROCEDURES, DELIVERY,AND DEPLOYMENT REPORT 5 1 Purchase Orders, Invoicing, Delivery, and Deployment a Esn does not require Customer to issue purchase orders and will invoice Customer for the initial payment upon the Effective Date of the EA Subsequently, Esri may submit invoices up to thirty(30)days before(i)the payment date shown in Appendix B or, (ii) if no payment dates are shown, the anniversary dates of the EA Customer may submit purchase orders in accordance with its own process requirements If Customer issues purchase orders,then Customer will submit its initial purchase order upon execution of this EA and any subsequent purchase order at least thirty(30)days before the anniversary date Invoices will be due and payable within thirty(30)days of invoice b Any purchase orders that Customer issues will reference incorporate and be subject to the terms and conditions of this EA Additional or conflicting terms in any purchase orders, invoices,or other documents exchanged during the ordering process, other than the terms of this EA, Product or Service descriptions, quantities, pricing, and delivery instructions are void and of no effect Customer will process all orders and deliveries pertaining to this EA through Customer's centralized point of contact c Customer will include the following information in each purchase order (1) Esri customer number, the ship-to address,and bill-to address as identified in Appendix C (2) Purchase order number (3) Applicable annual payment due and name of Customer (4) On the face of the purchase order, the following printed statement "Governed by and subject to Enterprise Agreement No 00282235 0" d Esri will provide Authorization Codes to activate the nondestructive copy protection program that enables Customer to download, operate, or allow access to the EA Products listed in Appendix A e Delivery of updates/new versions of EA Products will be made in the same manner If requested by Customer, Esri will deliver a limited number of sets of backup media as provided in Appendix B to the ship-to address identified in Appendix C—EA Points of Contact FOB destination with shipping charges prepaid Customer may purchase additional backup media sets at the prices in effect at the time of purchase Delivery or receipt of tangible media could cause prior and future license fees to be subject to taxes Esri may invoice for and Customer agrees to pay any such sales or use tax associated with receipt of tangible media f Customer shall track the Deployment status of EA Products g Esri reserves the right to suspend Customer's access to and use of EA Products if Customer fails to pay any undisputed amount owed on or before its due date Esri may charge Customer interest at a monthly rate equal to the lesser of one percent(1 0%) per month or the maximum rate permitted by applicable law on any overdue fees plus all expenses of collection for any overdue balance that remains unpaid ten (10)days after Esri has notified Customer of the overdue balance 5 2 Annual Report of Deployments At each anniversary date and ninety(90)days prior to the expiration date of this EA, Customer shall provide Esri a written report, in the form provided by Esri, detailing all Deployments made, including preexisting and Rolled-In Software(each a"Deployment Report") The report will be subject to audit by an authorized representative of Esri 5 3 Esri User Conference Registration. Esri shall provide Esri User Conference registrations to Customer annually during the term of this EA in the quantities set forth in Appendix B Customer is responsible for distributing the registrations to Customers Third parties may not represent or attend on behalf of Customer at any Esn User Conference ARTICLE 6—POINTS OF CONTACT, NOTICES 61 Points of Contact In Appendix C, each party shall identify points of contact for administrative and technical issues 6 2 Legal Notices. Except as otherwise set forth in this EA, any notice, report, demand,or other communication will be made in writing in English, sent by courier, registered or certified airmail, or facsimile or other electronic transmission, and confirmed when sent by couner or by registered or certified airmail, properly addressed to the appropriate party at the address set forth below, until changed by notice in writing by either party hereto If sent by E512G Page 4 of 11 February 4 2020 courier or airmail, notice will be effective upon the earlier of confirmed receipt or seven (7)days from the date of deposit with the courier service or post office If sent by electronic transmission, notice will be effective one(1) business day from the date of transmission, provided confirmation of receipt is made Notices will be given at the following addresses To Esri To Customer 380 New York Street as listed in Appendix C Redlands, CA 92373-8100 Attn Manager, Contracts and Legal Fax 909-307-3020 Email legalnotices(a7 esri.com ARTICLE 7—TERM,TERMINATION, AND EXPIRATION 7.1 Term.The term of the EA will commence on the Effective Date and be for the period listed in Appendix B unless this EA is terminated earlier as provided herein 7 2 Termination for a Material Breach, Convenience Esri may terminate this EA for a material breach by Customer Customer will be given a period of thirty(30)days from date of written notice to cure any material breach Upon termination of this EA by Esn for a material breach by Customer, all licenses Deployed will also terminate, and the full amount of unpaid EA Fees will be due and payable by Customer within thirty(30) days from the date of termination Customers shall uninstall, remove, and destroy all EA Products, training materials, and any whole or partial copies, modifications, or merged portions in any form Customer shall deliver evidence of such destruction to Esri (e g , certification letter) Customer may continue to use Rolled-In Software, provided Customer complies with the terms and conditions of the Master Agreement Further Esn agrees that Customer is not required to pay a maintenance reinstatement fee for lapsed maintenance for Rolled-In Software if Customer orders maintenance at time of EA termination Other items that may be included in this EA—such as EEAP, access codes, and Esri User Conference registrations—will also terminate if this EA is terminated This EA may not be terminated for convenience 7.3 Reserved. 7 4 License Term and Use upon Expiration of EA Term Upon termination or expiration all licenses granted hereunder terminate as well Customer will (i)stop accessing and using affected EA Product(s), (ii)clear any client-side data cache derived from Online Services, and(iii) uninstall, remove, and destroy all copies of affected EA Product(s)in Customer's possession or control, including any modified or merged portions thereof, in any form,and execute and deliver evidence of such actions to Esn Customer may continue to use the Rolled-In Software in accordance with the terms and conditions set forth in the Master Agreement Maintenance for Rolled- In Software will lapse if Customer does not order maintenance upon expiration of the EA ARTICLE 8—CONFIDENTIALITY 8 1 Esri Confidential Information Certain terms and conditions of this EA are confidential and proprietary information of Esri Except as provided herein, Customer shall not publish or disclose the EA(or contents)to any third party without Esri's prior written consent Disclosure may be made only to those Customer employees contractors, or consultants of Customer(e g outside counsel or accountants)who have a need to know to perform their duties or work on behalf of Customer and have an obligation of confidentiality No other portions of the EA may be disclosed to a contractor or consultant To the extent that any such disclosures may be required by law(such as an open/public records request), Customer shall inform Esn of the requested disclosure, with a reasonable description of the requested disclosure and identification of the requester, in sufficient time for Esri to assert any objection Esri may have to such disclosure with the appropriate administrative or judicial body E512G Page 5 of 11 February 4,2020 ARTICLE 9—RELATIONSHIP OF THE PARTIES The EA does not constitute a partnership,joint venture, or agency between Esri and Customer Neither Esri nor Customer will hold itself out as such, nor shall Esn or Customer be bound or become liable because of any representation, action, or omission of the other ARTICLE 10—FORCE MAJEURE If the performance of any obligation under this EA is prevented, restricted, or interfered with by reason of fire, flood, earthquake, explosion, or other casualty or accident, strikes or labor disputes, inability to procure or obtain delivery of parts, supplies, or power, war, threat of or actual terrorist act, cyber attack, or other violence, any law, order, proclamation, regulation, ordinance, demand, or requirement of any government agency, or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, will be provided a temporary extension for a period of time as may be reasonably necessary to allow for such delay, prevention, interference, or restriction ARTICLE 11—GIS STANDARD Customer shall officially name Esri as its GIS standard and act as a reference for other Esri customers and potential customers as long as the EA remains in effect This EA will not be construed or interpreted as an exclusive dealings agreement and Customer reserves the right to purchase from third parties any of their requirements for GIS software or related services Customer agrees that Esn may publicize the existence of the EA ARTICLE 12—ADMINISTRATIVE REQUIREMENTS 12 1 Esri Partner Original Equipment Manufacturer(OEM) Bundled or Embedded Items/Services Certain Esri partners are authorized to either embed limited portions of Esn technology or bundle Esri products or services with the partner's application or service under Esn's OEM or Solution OEM programs Partner pricing and product bundling is independent of this EA and each partner markets under its own business model and pricing Customer shall not be entitled to or seek any discount from the OEM partner or Esn, directly or indirectly, as a result of or based on the availability of such Products as EA Products under this EA Customer shall not be entitled to or seek to decouple Esri's technology or products/services from the partner's bundle or solution In addition, such Products or any component thereof included in the OEM software program or product,will be licensed through the Master Agreement provided by the OEM partner and not through this EA 12 2 EA Products—Limited Quantity or Unit-Priced Items Esn reserves the right to exclude new Products from uncapped Deployment New Products may contain or be developed with (i)newly acquired technology obtained through a significant investment or(ii)third-party intellectual property that requires a unit-based royalty fee or prohibits Deployment under a site or enterprise license Such items can be made available to Customer on a limited-quantity basis or as unit-priced items 12 3 Obsolescence During the term of this EA, some of the items listed in Appendix A may become obsolete, will no longer be commercially offered, or may no longer be available for Deployment Customer may continue to use EA Products that have been Deployed, but support and upgrades for older items may not be available EA Maintenance and maintenance and availability of EA Products identified in Appendix A will be subject to each item's Product Life Cycle Support Status and Esri's Product Life Cycle Support Policy,which can be found at https//support esri corn/en/other-resources/product-life-cycle by selecting the product type and clicking the Product Life Cycle link for specific product plans ARTICLE 13—GENERAL PROVISIONS 13 1 If there is a conflict among any of the terms and conditions in the various documents, the order of descending precedence will be as follows (1)Signature Page, (2) Enterprise License Terms and Conditions, (3) Master Agreement For the avoidance of doubt, Article 7—Term, Termination, and Expiration of this EA supersedes any termination language in the Master Agreement with respect to all Products and Services provided E512G Page 6 of 11 February 4,2020 under this EA The Esn Enterprise Advantage Program (EEAP)terms and conditions take precedence over the provisions of this EA with respect to products or services provided under EEAP Except as otherwise expressly provided herein, any amendment or Addendum to this EA must be in writing and signed by an authorized representative of each party 13 2 Survival of Certain EA Clauses The provisions of Sections 2 3 and 7 4 and Article 8 of this Enterprise License Terms and Conditions document will survive the expiration or termination of this EA E512G Page 7 of 11 February 4,2020 APPENDIX A PRODUCTS AND DEPLOYMENT SCHEDULE Customer may Deploy the EA Products up to the total quantity of licenses indicated below during the term of this EA Table A-1 EA Products—Uncapped Quantities Total Qty to Be Product Deployed ArcGIS Desktop Advanced, Standard, Basic(Single and Concurrent Use) Uncapped ArcGIS Desktop Extensions ArcGIS 3D Analyst, ArcGIS Data Reviewer,ArcGIS Uncapped Geostatistical Analyst,ArcGIS Network Analyst,ArcGIS Publisher,ArcGIS Schematics, ArcGIS Spatial Analyst, and ArcGIS Workflow Manager(Single and Concurrent Use) ArcGIS Enterprise Enterprise and Workgroup (Advanced and Standard) Uncapped ArcGIS Enterprise Extensions ArcGIS 3D Analyst, ArcGIS Geostatistical Analyst,ArcGIS Uncapped Network Analyst ArcGIS Schematics,ArcGlS Spatial Analyst, and ArcGIS Workflow Manager ArcGIS GIS Server Advanced Standard, Basic Uncapped ArcGIS Enterprise Additional Capability Servers ArcGIS Image Server,ArcGIS Uncapped GeoEvent Server ArcGIS Monitor Uncapped Mapping and Charting Solutions Esri Production Mapping for Desktop Uncapped ArcGIS Engine Uncapped ArcGIS Engine Extensions ArcGIS 3D Analyst, ArcGIS Geodatabase Update, ArcGIS Uncapped Network Analyst,ArcGIS Schematics, and ArcGIS Spatial Analyst ArcGIS Runtime Advanced Uncapped ArcGIS Runtime Analysis Extension Uncapped Table A-2 EA Products—Capped Quantities Item Qty to Be Deployed Total ArcGIS Business Analyst Web App Online 5 5 Term Licenses Insights in ArcGIS Online Term License 1 1 Drone2Map for use with ArcGlS Online. Term 1 1 License ArcGIS Urban Suite Term Licenses 6 6 ArcGIS Utility Network Service User Types 4 4 Extension for ArcGIS Enterprise Term Licenses Insights in ArcGIS Enterprise Term License 1 1 See next page for Table A-2 continued E512G Page 8 o€11 February 4 2020 Continued Table A-2 EA Products—Capped Quantities Number of Named Users per Annual Credits Product Subscriptions Subscription per Subscription ArcGIS Online User Types Organizational 1 100 Viewer User 125,000 Subscription Types 250 Creator User Types *ArcGIS Online Subscription for Emergency 1 5 Creators User 1,250 Management Organizational Subscription with Types Emergency Management Surge Option *ArcGIS Online Subscription for Emergency Management Organizational Subscription with Emergency Management Surge Option includes the ability to add an Uncapped number of Creator User Types during an activation of the EOC(partial or full)via request to Esn Disaster Response Program http llwww esn coralsereiices/disaster-responselform When the EOC returns to standard operations, Customer will have two weeks to return to normal with the original 5 Creator User Types E512G Page 9 of 11 February 4 2020 APPENDIX B EA FEE SCHEDULE The EA Fee is$202,500 00 The EA Fee is in consideration of the EA Products, EA Maintenance Platform Engineer Service Retainer Package and Esri User Conference registrations Year 4 Year 5 Year 6 EA Fee 2020 2021 2022 Payments $65,000 $67,500 $70,000 $202,500 Platform Engineer Service Retainer Package 1 Package per Year Number of Esri User Conference Registrations per Year 6 Number of Tier 1 Help Desk Callers That May Contact Esri for Tier 2 Support 10 Number of Sets of Backup Media, if Requested 2 Three years beginning May 3,2020 Term of EA through May 2,2023 E512G Page 10 of 11 February 4,2020 APPENDIX C EA POINTS OF CONTACT Either party may change its point of contact by written notice to the other party 1 Esn point of contact for order processing issues Name Customer Service Esn 380 New York Street Redlands, CA 92373-8100 Email serviceesri corn Phone 888-377-4575 Fax 909-307-3083 2 Esn contact for Tier 2 Support issues MyEsn https.//my.esn.com Phone 909-793-3774 (within the United States only) Fax 909-792-0960 Web httns.11sunnort.esri.com 3 Customer centralized point of contact for order release and administrative issues Name Danielle Garcia Email dgarcia@cityofredlands org Phone 909-753-5800 Fax 4 All invoices to Customer will be mailed to the address listed below(unless otherwise stated on the purchase order) Customer Office City of Redlands Name Danielle Garcia Address 35 Cajon St Suite 222 Redlands, CA 92373 5 All deliverables to Customer will be shipped to the address listed below Customer Office City of Redlands Name Danielle Garcia Address 35 Cajon St Suite 222 Redlands, Ca 92373 6 All notices to Customer will be mailed to the address listed below Customer Office City of Redlands Name Danielle Garcia Address 35 Cajon St Suite 222 Redlands, Ca 92373 E512G Page 11 of 11 February 4,2020 EXHIBIT B Master Agreement � � OF E rE � Y INHERE Product and Services + Revised March 5,2020 IMPORTANT—READ CAREFULLY Unless superseded by a signed license agreement between you and Esri, Esri is willing to provide Esn Offerings and Services to you only if you accept all terms and conditions contained in this Agreement as the sole and final agreement of the parties regarding your acquisition of these Esri Offerings and Services Please read the terms and conditions carefully You may not use the Esri Offerings unless you agree to the terms and conditions of the Agreement Your access and use of Esri Offerings,or Services, constitutes your acceptance of the terms and conditions of this Agreement If you do not agree, contact your local sales representative prior to making your purchase This Master Agreement("Agreement") is between you ("Customer")and Environmental Systems Research Institute, Inc ("Esri"), a California corporation with a place of business at 380 New York Street, Redlands, California 92373-8100 USA Attachment A contains definitions of capitalized terms used throughout this Agreement Each section of this Agreement may include additional definitions that are used exclusively within that section 1 0 GENERAL GRANT OF RIGHTS AND RESTRICTIONS 1.1 Grant of Rights In consideration of Customer's payment of all applicable fees and in accordance with this Agreement, Esri a Provides Services as set forth in this Agreement b Grants to Customer a nonexclusive nontransferable right and license or subscription to access and use Esn Offerings as set forth in the Specifications and applicable Ordering Documents, and c Authorizes Customer to copy and make derivative works of the Documentation for Customer's own internal use in conjunction with Customer's authorized use of Esri Offerings Customer will include the following copyright attribution notice acknowledging the proprietary rights of Esn and its licensors in any derivative work "Portions of this document include intellectual property of Esri and its licensors and are used under license Copynght©[Customer will insert the actual copyright date(s) from the source materials] Esri and its licensors All nghts reserved " The grants of rights in this section (i)continue for the duration of the subscription or applicable Term or perpetually if no Term is applicable or identified in the Ordering Documents and (ii)are subject to additional rights and restrictions in this Agreement including Attachment B 1 2 Consultant or Contractor Access Customer may authonze its consultants or contractors to(i)host Esri Offerings for Customer's benefit and (ii)use Esri Offerings exclusively for Customer's benefit Customer will be solely responsible for its consultants'and contractors'compliance with this Agreement and will ensure that each consultant or contractor discontinues use of Esri Offerings upon completion of work for Customer Access to or use of Esri Offerings by consultants or contractors that is not exclusively for Customer's benefit is prohibited 1 3 Reservation of Rights All Esri Offenngs are the copyrighted works of Esri or its licensors, all rights not specifically granted in this Agreement are reserved 1 4 Customer Content Esri does not acquire any rights in Customer Content under this Agreement other than as needed to provide Esri Offerings and Services to Customer E204 Legal Page 1 of 25 March 5 2020 2.0 SOFTWARE AND ONLINE SERVICES 2 1 Definitions The following definitions supplement the definitions provided in Attachment A a "Anonymous Users" means all who have public access (i e ,without having to provide a Named User Credential)to any part of Customer Content or Customer's Value-Added Applications b. "App Login Credential(s)" means a system-generated application login and associated password provided when registering a Value-Added Application with ArcGIS Online,which when embedded in a Value-Added Application allows the Value-Added Application to access and use Online Services c "Commercial App Deployment License" means a license to distnbute Value-Added Applications to third parties for a fee d "Concurrent Use License" means a license to install and use Software on computer(s)on a network, provided that the number of simultaneous users may not exceed the number of licenses acquired A Concurrent Use License includes the right to run passive failover instances of Concurrent Use License management software in a separate operating system environment for temporary failover support e "Deployment License" means a license to incorporate ArcGIS Runtime components in Value-Added Applications and distribute Value-Added Applications to Customer's end users f "Deployment Server License" means a license to use Software under a Server License for all uses permitted in this Agreement and as described in the Documentation g "Development Server License"means a license to use Software under a Server License only to build and test Value-Added Applications as described in the Documentation h "Development Use" means the right to install and use Products to build and test Value-Added Applications as described in the Documentation "Dual Use License"means the right to install Software on a desktop computer and use it simultaneously with either a personal digital assistant(PDA)or handheld mobile computer as long as the Software is only used by a single individual at any time "Failover License" means a license to install Software on redundant systems for failover operations, but the redundantly installed Software may be operational only during the period the primary site is nonoperational Except for system maintenance and updating of databases the redundant Software installation(s)will remain dormant while the primary site (or any other redundant site)is operational k "Named User(s)" is Customer's employee,agent, consultant, or contractor to whom Customer has assigned a unique, secure login credential (identity)enabling access to a Product that requires such identity in order to access identity-managed capabilities within a Product for Customer's exclusive benefit For educational use Named Users may include registered students i "Named User Credential(s)"means an individual person's login and associated password enabling that person to access and use Products m "Named User License" means the nght for a single Named User to use a specific Esri Offering n "Online Services Subscription"means a limited-term subscription conveying the right for one or more Named Users to access and use Online Services o "Redistribution License"means a license to reproduce and distnbute Software provided that 1 Customer reproduces and distributes the Software in its entirety, 2 A license agreement that protects the Software to the same extent as this Agreement accompanies each copy of the Software, and the recipient agrees to the terms and conditions of the license agreement, 3 Customer reproduces all copynght and trademark attributions and notices, and 4. Customer does not charge a fee to others for the use of the Software p "Server License" means a license to install and use Software on a server computer Server Licenses may be subject to a limited number of server cores or distributed deployment on multiple servers as described in the Ordering Documents or Documentation if the Software description includes failover use nghts, each Server License includes a Failover License q "Service Credit(s)" means a unit of exchange for consumption of services that can be used with an Online Services Subscription r "Sharing Tools" means publishing capabilities included with Customer's authorized use of Online Services that allow Customer to make Customer Content and Value-Added Applications available to third parties or Anonymous Users E204 Legal Page 2 of 25 March 5 2020 s "Single Use License" means a license for a single authorized end user to install and use Software on a single computer The single authorized end user may also install a second copy for the end users exclusive use on a second computer as long as only 1 copy of Software is in use at any time No other end user may use Software under the same license at the same time for any other purpose t "Staging Server License"means a license to use Software under a Server License to build and test Value- Added Applications and map caches, conduct user acceptance, performance and load testing of other third- party software, stage new commercial data updates, and conduct training activities as described in the Documentation Customer may use Value-Added Applications and map caches with Development and Deployment Server Licenses 2.2 License and Subscription Types. Esn provides Software Products under one or more of the license or subscription types identified in the definitions above The Documentation and Ordering Documents identify which license or subscription type(s)applies to the ordered Products 2 3 Software Terms of Use a Customer may 1 Install,access, or store Software and Data on electronic storage devrce(s) 2 Make archival copies and routine computer backups, 3. Install and use a newer version of Software concurrently with the version to be replaced during a reasonable transition period not to exceed 6 months provided that the deployment of either version does not exceed Customer's licensed quantity thereafter, Customer will not use more Software in the aggregate than Customer's total licensed quantity This concurrent use right does not apply to Software licensed for Development Use 4 Move Software in the licensed configuration to a replacement computer, 5 Distnbute Software and any associated Authorization Codes required for use of a Deployment License to third parties, and 6 Governmental or not-for-profit organizations that operate a website or offer Internet services may use server Software for revenue-generating purposes on a cost-recovery basis and not for profit. b Customer may customize Software using any macro or scripting language,APIs or source or object code libraries but only to the extent that such customization is described in the Documentation c Customer may use all fonts provided with Software for any authonzed use of the Software Customer may also use Esn fonts separately to print any output created by the Software Any use restrictions for third-party fonts included with the Software are set forth in the font file itself d Esri publishes Product-specific Software terms of use at http.//www esn coin/legal/scope-of-use 2 4 Online Services Terms of Use a Online Services Descriptions Esri publishes Online Services Subscription-specific terms of use at http.//www.esri.com/legal/scope-of-use Use of Online Services is also subject to the Cloud Services terms found in Attachment B b Modifications of Online Services Esri may change Online Services and associated APIs at any time, subject to 30 days'notice of material changes and 90 days'notice for deprecations If any modification, discontinuation,or deprecation of Online Services causes a material, adverse impact to Customer's operations, Esn may, at its discretion, attempt to repair, correct or provide a workaround for Online Services If a viable solution is not commercially reasonable, Customer may cancel its subscription to Online Services, and Esri will issue a prorated refund c Sharing Customer Content. Sharing Customer Content using Sharing Tools enables third parties to use, store, cache, copy, reproduce, (re)distribute, and (re)transmit Customer Content through Online Services Esri is not responsible for any loss, deletion, modification, or disclosure of Customer Content resulting from use or misuse of Shanng Tools Customer's use of Sharing Tools is at Customer's sole risk d Limits on Use of Online Services, Service Credits Each Online Services Subscription includes Service Credits as described in the applicable Ordering Document Each Service Credit entitles Customer to consume a set amount of Online Services, the amount varying depending on the Online Services that Customer is E204 Legal Page 3 of 25 March 5,2020 using As Customer consumes Online Services, Service Credits are automatically debited from Customer's subscription, up to the maximum number of Service Credits available Customer may purchase additional Service Credits as needed Esri will notify Customer's subscription account administrator when Customer's Service Credit consumption reaches approximately 75 percent of the Service Credits allocated to Customer through Customer's subscription Esn reserves the right to suspend Customer's access to Online Services that consume Service Credits when Customer has consumed all its Service Credits Esn will promptly restore Customer's access to its Online Services once Customer has purchased additional Service Credits 2 5 Named User Licenses Except as expressly set forth in this Agreement, the following terms apply to Software and Online Services for which Customer acquires Named User Licenses a Named Users 1 Named User login credentials are for designated users only and may not be shared with other individuals 2 Customer may reassign a Named User License to another user if the former user no longer requires access to the Software or Online Services 3 Customer may not add third parties as Named Users, other than third parties included within the definition of Named Users b Value-Added Applications 1 Customer is responsible for the development, operation, and technical support of Customer Content and Value-Added Applications 2 Customer may not embed a Named User Credential into Value-Added Applications Value-Added Applications that enable access to Customer's private data or content must require individual users to log in to the application(s)with their unique Named User login credentials 3 Customer may embed an App Login Credential into Value-Added Applications that provide access by Anonymous Users to services, content, or data that has been published for shared access by Anonymous Users through the use of Sharing Tools 4 Customer may not embed an App Login Credential into Value-Added Applications that enables access to Customer Content that is not publicly shared through the use of Sharing Tools Value-Added Applications that enable access to Customer Content that is not publicly shared through the use of Shanng Tools must require individual users to log in to the application(s)with their unique Named User login credentials 5 Customer may not provide a third party,other than third parties included within the definition of Named Users,with access to Software or Online Services, other than through Customer's Value-Added Application(s) 6 Customer may transfer Value-Added Applications to any third party for use in conjunction with the third party's own Software license or Online Services Subscription. c Anonymous Users Anonymous Users may only access Software or Online Services through Value-Added Applications that provide access to services, content, or data that has been published for shared access through the use of Sharing Tools 2.6 Limited-Use Programs a Trial, Evaluation, and Beta Programs Products acquired under a trial,evaluation,or Beta program are licensed for evaluation and testing purposes only and not for commercial use Any such use is at Customer's own risk, and the Products do not qualify for Maintenance If Customer does not convert to a purchased license or subscription prior to the expiration of the trial, evaluation, or Beta license, Customer may lose any Customer Content and customizations made during the license term If Customer does not wish to purchase a license or subscription, Customer should export such Customer Content before the license expires b Educational Programs Customer agrees to use Products provided under an educational program solely for educational purposes during the educational use Term Customer shall not use Products for any Administrative Use unless Customer has acquired an Administrative Use license "Administrative Use" means administrative activities that are not directly related to instruction or education such as asset mapping E204 Legal Page 4 of 25 March 5,2020 facilities management, demographic analysis, routing, campus safety, and accessibility analysis Customer shall not use Products for revenue-generating or for-profit purposes c Grant Programs Customer may use Products provided under a grant program for noncommercial purposes only Except for cost recovery of using and operating the Products, Customer shall not use Products for revenue-generating or for-profit purposes d Other Esri Limited-Use Programs If Customer acquires Products under any limited-use program not listed above, Customer's use of the Products may be subject to the terms set forth in the applicable launching page or enrollment form or as described on Esri's website in addition to the nonconflicting terms of this Agreement 30DATA 3 1 Definitions The following definitions supplement the definitions provided in Attachment A a "Business Listing Data" means any dataset that includes a list of businesses and may include other associated business attributes b "Esri Content Package(s)" means a digital file containing ArcGIS Online basemap content(e g , raster map tiles, images, vector data)extracted from the ArcGIS Online basemap services c "Street Data"means Data that includes or depicts information about roads, streets, and related features 3.2 Permitted Uses a Unless otherwise authorized in writing, Customer may only use Data with the Products for which Esri has provided the Data b Customer may include representations of Data in hard-copy or static, electronic format(e g , PDF, GIF, JPEG, HTML), in ArcGIS Web Maps or in Esri Story Maps apps for the purposes of visualizing Data (including basic interactions such as panning, zooming, and identifying map features with simple pop-ups)for use in presentation packages, marketing studies, or other reports or documents containing map images or data summaries derived from the use of Esn Products to third parties subject to restrictions set forth in this Agreement, provided that Customer affixes an attribution statement to the Data representations acknowledging Esri or its applicable licensor(s)as the source of the portion(s)of the Data used for the Data representation c Customer may take ArcGIS Online basemaps offline through Esri Content Packages and subsequently deliver(transfer)them to any device for use with licensed ArcGIS Runtime applications and ArcGIS Desktop Customer may not otherwise scrape, download, or store Data d Customer may make any internal use of geocoded results that are obtained and stored in compliance with this Agreement Customer may not redistribute geocoded results except to(i)use and/or display on a map in connection with Customer's public, non-revenue generating website(s), (ii)permit access to third-parties for the purposes of Customer's business or(iii)deliver to third parties, on a noncommercial/non-revenue generating basis static results, static output or static base map renderings 3.3 Use Restrictions a Customer may not act directly or authorize its customers to cobrand Data, use Data in any unauthorized service or product, or offer Data through or on behalf of any third party b Customer may not use or allow third parties to use Data,for the purpose of compiling, enhancing verifying supplementing, adding to, or deleting from compilation of information that is sold, rented, published, furnished, or in any manner provided to a third party c Business Listing Data Unless authorized in writing, Customer may not use Business Listing Data for any direct marketing purposes, resale publication, or distribution to any third party as part of any mailing list, directory, classified advertising, or other compilation of information d Street Data Customer may use Street Data for mapping, geocoding, routing, and transportation network analysis purposes Unless otherwise authorized in writing, Customer may not use Street Data for 1 Real-time navigational guidance, including alerting a user about upcoming maneuvers, such as warning of an upcoming turn or calculating an alternate route if a turn is missed, 2 Synchronized multivehicle routing, or E204 Legal Page 5 of 25 March 5 2020 3 Synchronized route optimization e Business Analyst Data Customer may cache Data provided with ArcGIS Business Analyst Mobile App on a mobile device for use in conjunction with its use of ArcGIS Business Analyst Server Customer may not otherwise cache or download such Data f Partial Dataset Licenses If Customer orders a subset of a dataset(e g , a country, region, state, or local portion of a global database), Customer may use only the licensed subset, not any other portion of the full dataset g Michael Bauer Research International Boundaries Data ("MBR Data') Customer's right to use data downloaded to Customer's premises (e g , MBR Data stored in ArcGIS Enterprise, ArcGlS Desktop) terminates 2 years after download 3 4 Supplemental Terms and Conditions for Data Certain Data licensors require Esri to flow down additional attribution requirements and terms of use to Customer These terms supplement and amend the terms of this Agreement and are available at www esri corn/legal/third party-data 4.0 MAINTENANCE 41 US Customers Esri will provide Maintenance for Software and Online Services in accordance with the Esn Maintenance and Support Program and this Agreement if Customer is in the United States 4.2 Customers outside the United States Customer may obtain maintenance services from their local Esri distributor under the distributor's own standard support policy 5 0 PROFESSIONAL SERVICES 5 1 Definitions.The following definitions supplement the definitions provided in Attachment A a "Invention(s)"means a patentable invention, discovery, innovation or improvement excluding Deliverables relating to the subject matter of a Task Order b "Inventor(s)"means a party's principal, employee, consultant, or independent contractor that solely or jointly develops Inventions during Esri's performance under a Task Order c "Professional Service Package(s)"means a predefined unit of Professional Services, including travel- related expenses, provided at a firm fixed price 5.2 Permitted Uses.Customer may use, copy, and modify Deliverables solely in conjunction with Customer's authorized use of Products 5.3 Task Orders and Project Schedule. a Esri will provide Professional Services and Deliverables as specified in the Task Order b Each Task Order will reference this Agreement and specify the commencement date and, if known, the period of performance c. Task Orders may have the format shown in Attachment C or any other agreed-upon format d Each party will identify, in writing, the project manager who is responsible for Professional Services and Deliverables described in Task Orders By written notice to the other party's technical administrator, either party may replace the project manager at any time with a similarly qualified person e Other than pncing and descriptions of Professional Services to be performed, terms and conditions in a Task Order are not binding unless both parties have signed the Task Order The terms of a signed Task Order take precedence over conflicting terms in this Agreement 5.4 Ownership of Deliverables and Inventions. a Esri or its licensors own and retain ownership of Deliverables b Each party will retain title to any Inventions made or conceived solely by its Inventors during the term of this Agreement, including but not limited to such Inventions that Esn's Inventors solely make or conceive while E204 Legal Page 6 of 25 March 5,2020 providing technical assistance pursuant to this Agreement The parties will jointly own any inventions made or conceived jointly by Inventors from both parties c. The parties will negotiate in good faith and cooperate reasonably in (i)deciding whether or not to seek or maintain, or to continue to seek or maintain, patent protection in any country on any Invention and the extent and scope of such protection and(ii)protecting and enforcing any patents issued on such Invention 5.5 Acceptance a For Firm Fixed Price Task Orders Customer will complete its acceptance review within 10 working days of receiving each Deliverable and classify the Deliverables as follows- 1 "DELIVERABLE ACCEPTED"means a Deliverable conforming to the applicable Task Order with no more than minor nonconformities 2 "DELIVERABLE ACCEPTED WITH REWORK"means a Deliverable substantially conforming to the applicable Task Order but having a significant number of identified nonconformities and accepted subject to rework by Esn Esn will rework the Deliverable for the identified nonconformities and resubmit it within 30 days Customer will rerun its acceptance review for the nonconformities detected in the initial review within 10 working days of such resubmission and will reclassify the Deliverable as either DELIVERABLE ACCEPTED or DELIVERABLE REJECTED 3 "DELIVERABLE REJECTED"means a Deliverable that fails to substantially conform to applicable Task Order(s) Esri will rework the Deliverable and resubmit it to Customer within 30 days, at which time Customer will have 10 working days to rerun its acceptance review and reclassify the deliverable as either DELIVERABLE ACCEPTED or DELIVERABLE REJECTED Customer may not use any Deliverable in its business operations before acceptance as described in a 1 or a 2 If Customer does not notify Esri in writing within 10 working days after delivery that it has classified the Deliverable as ACCEPTED WITH REWORK or REJECTED in accordance with a 2 or a 3, or if Customer uses the Deliverable in its business operations,the Deliverable will be deemed, as of the first of either of these events to occur,to have been accepted b For Task Orders with Professional Service Packages Professional Services that Esri performs under Professional Service Packages will be deemed accepted unless Customer notifies Esri within 10 days after performance Customer may purchase additional Professional Service Packages as needed to complete Customer's work requirements c For Time and Materials Task Orders Professional Services are provided strictly on a time and materials basis subject to the Task Order not-to-exceed funding limit The Professional Services provided will be deemed accepted and in compliance with the professional and technical standards of the software industry unless Customer notifies Esn within 10 days after performance Deliverables produced under a time and materials Task Order will not be subject to acceptance testing 5 6 Warranty for Deliverables Esri warrants to Customer that firm fixed price Deliverables matenally comply with Specifications for a penod of 90 days from acceptance, subject to the limitations and disclaimers of liability set forth in the "Limited Warranties and Disclaimers"section of Attachment B 5 7 Changes The parties may make changes within the general scope of a Task Order by mutual agreement To document any agreed-to scope changes within the general scope of the Task Order that affects the cost or time required to provide a Deliverable, the parties will jointly sign a written amendment to the Task Order that includes an equitable adjustment in the price, schedule,or both 5 8 Customer Termination for Convenience Customer may terminate any Task Order at any time upon 30 days'written notice to Esri and upon payment to Esri of all amounts due to date pursuant to this Agreement, including reasonable expenses incurred as a direct result of the termination and the pro rata contract price for the Task Orders affected E204 Legal Page 7 of 25 March 5 2020 5 9 Payment; Invoices a For Firm Fixed Price Task Orders Unless otherwise specified in a Task Order, Esri will prepare and submit monthly invoices based on the percentage of completion for each Deliverable as of the end of the preceding month Upon acceptance of all Deliverables under a Task Order,the unpaid balance of the total Task Order value is due b For Professional Service Packages. Esri will submit an invoice for Professional Service Packages on receipt of an agreed-upon Task Order Esn may, at its sole discretion, stop work to avoid exceeding the total labor hours or number of days allotted in the applicable Professional Service Package description set forth in the applicable scope of work Professional Service Packages expire if not used within 12 months of the Esri invoice date c For Time and Materials Task Orders 1 Esri will submit to Customer written monthly invoices to the Customer address provided in the Task Order The invoices will include the payment due for work performed, including travel time, and any other direct costs (ODCs) incurred as authonzed under a Task Order The amount invoiced for labor will be equal to the number of hours expended during the previous month, multiplied by the applicable labor rates Esri will invoice meals on a per diem basis in accordance with the full daily limits specified on the government General Services Administration (GSA)website at https.11www.gsa.govl Esri and Customer may include hourly labor rates in this Agreement, if the parties elect to do so,Attachment D will identify the hourly labor rates for each labor category Esri may change hourly labor rates for Services, any increase in the first 5 years will not exceed 5 percent per year Esri will invoice ODCs, including travel- related expenses incurred, plus a 15 percent burden 2 Esri may reallocate the budget between activities, labor categories, and ODCs as necessary to facilitate the work effort, provided the overall price is not exceeded If Esri reaches the funded not-to-exceed Task Order value and the activities are not completed Customer may increase the order funding to allow additional work to be performed, or Esri may stop work without further obligation or liability 5 10 System and Data Access Each Task Order will specify any requirement for Customer to give Esn personnel access to Customer's systems or data 6 0 ESRI MANAGED CLOUD SERVICES 61 Definitions The following definitions supplement the definitions provided in Attachment A a "Esri Managed Cloud Services Environment"means the hardware, Software, Data, and network platform that Esri or its third-party supplier provides as part of Esri Managed Cloud Services b "Hosting"means the business of housing and making accessible Customer Content via the Internet 6 2 Provision of Esri Managed Cloud Services a General Terms Use of Esn Managed Cloud Services is subject to the Cloud Services terms found in Attachment B of this Agreement b Requirements Planning It is Customer's responsibility to plan for and address with Esri changes to Customer's requirements, such as the need for additional capacity,the update of an application or dataset, or increased level of system availability c Compensation and Expenses Esri will invoice Customer for the one-time setup fee upon Task Order execution Thereafter, Esri will invoice Customer monthly for the Esri Managed Cloud Services to be provided the following month Customer will pay invoices within 30 days of receipt Customer is responsible for any shipping or temporary storage costs incurred during the delivery of Customer Content to Esri or removal of Customer Content from the Esn Managed Cloud Services Environment This paragraph does not apply to Esn Managed Cloud Services provided under the Advantage Program (see the section entitled "Advantage Program"in this Agreement) E204 Legal Page 8 of 25 March 5 2020 d Risk of Loss Risk of loss for all Customer Content shall at all times remain with Customer,and it is Customer's sole responsibility to maintain regular backups of Customer Content Risk of loss for the Esri Managed Cloud Services Environment shall at all times remain with Esn e Personally Identifiable Information Prior to providing any Customer Content under this Agreement, Customer shall notify Esri if Customer Content includes personally identifiable information f Public Software Customer may not use and may not authorize its end users or contractors to combine or use any Esn Offerings with any software(including any underlying dependencies), documentation, or other material distributed under an open source or other similar licensing or distribution model that requires as a condition of such model that any component of the Esn Offering to be(1)disclosed or distnbuted in source code form (2) made available free of charge to third parties, or(3)modifiable without restriction by third parties g Monitoring Customer will provide information and other materials related to its Customer Content as reasonably requested by Esri or its Hosting partner to venfy Esn's or Customer's compliance with this Agreement Esn or its Hosting partner, as applicable, may browse, index, or otherwise monitor the external interfaces of any Customer Content solely for the purpose of verifying compliance with this Agreement 7 0 TRAINING 7 9 Definitions The following definitions supplement the definitions provided in Attachment A a "Customer-Supplied Training Data"means any digital dataset(s) including, but not limited to, geographic vector data,coordinates raster data reports, or associated tabular attributes supplied by Customer for use in training b "Esri Mobile Lab"means a service in which Esri will deliver and set up a training environment at the Customer's site for use in conjunction with scheduled Esri Training Events only The Esri Mobile Lab will include certain hardware, software, power cords, and network switches necessary for the instructor to set up the environment. c "Esri Training Event(s)"means an Esri site class, Esri instructor-led online class, a Customer site/private class,workshop, or coaching services d "Esri Training Event Assistant" means Customer's primary Esri liaison in organizing private Esn Training Events e "Student(s)"means a Customer employee or agent who is a registered participant in a specific Esn Training Event or Training-related services If Customer is an individual,then Student means Customer f "Training Pass" means a nonrefundable, nontransferable block of prepaid training days with a fixed pnce per day training price throughout the Term of the Training Pass g "Esri Mobile Router"means a service in which Esri will deliver and setup a mobile router at the Customer's site for use in conjunction with a scheduled Esri Training Event only The mobile router provides high-speed wireless internet access needed to run the Esri Training Event 7 2 Permitted and Prohibited Uses a Esri provides Training Materials for Training purposes only and for the exclusive use of the Student who attends the Training course for which the Training Materials are provided b Customer may reproduce copies of Training Materials for registered Students c Customer may not and may not permit any Student to(i)separate the component parts of Training Materials for any use or(ii) use audio or video recording equipment during an Esri Training Event d Esri may issue temporary Product authorizations if Customer has an insufficient number of Products available for Training Customer may use such Products as Training Matenals under the terms of this Agreement Customer will uninstall all deployed Products and return any media provided by Esn upon conclusion of the Esri Training Event e. Customer will retain ownership of any Customer-Supplied Training Data E204 Legal Page 9 of 25 March 5 2020 7.3 Esri's Responsibilities. Esri will a Provide an instructor qualified to conduct Training b Provide all necessary Training Materials for Student, and c Confirm Esn Training Events approximately 10 business days prior to the scheduled start date Esn will only confirm Student registrations that include a payment method Registrations without a confirmed payment method are placed on the reservation waiting list All reservations on the waiting list are subject to availability Customer site/Private class and coaching services confirmation is also dependent on receipt of the completed Customer site training request form 7 4 Customer's Responsibilities Customer will a Ensure that all Students have received confirmation from Esri to participate in an Esri Training Event Esri reserves the right to disconnect any Student who permits unregistered student access to an online classroom Esri Training Event In such case,the full Esri Training Event fee will be invoiced and payable, b Ensure that all Students meet the minimum prerequisites for the applicable Esn Training Event as listed on Esri's training website, c Submit Student registrations in Esri site classes with payment method information at least 15 business days before the scheduled start date, d Provide the Esri Training Event Assistant with a list of names and email addresses of any Students who are to attend an Esn Training Event at least 3 business days before the scheduled start date, for compliance with the US embargoed country lists and the various US Government Lists of Parties of Concern or Specially Designated Nationals lists, e For classes held at the Customer-designated facility, complete a client-site training request form, consult with Esri personnel to determine classroom, computer, and network requirements,and provide all such required classrooms, computers, and network access, f Ensure that Student use of Training Materials provided by Esri complies with the terms of this Agreement, and g Assume full liability and responsibility for Student attending Training course(s)under this Agreement h If the Esri Mobile Lab or Mobile Router is used Customer will 1 Take delivery of the Esri Mobile Lab or Mobile Router from the shipping agent, and keep it in a secure, locked area at all times, 2 Immediately report any previously damaged Esri Mobile Lab or Mobile Router equipment to the Esri Training Event Assistant upon receipt of the shipment, and 3 Be financially responsible for loss of, damage to, or theft of Esri Mobile Lab or Mobile Router equipment while in Customer's possession 7.5 Student Registration and Training Event Change Policy a Customer will provide advance written notice to Esri Customer Service at service@esri corn to reschedule or cancel any Esri Training Event or to substitute a student in a scheduled Esri Training Event b A replacement Student must be from the same Customer organization as the Student being replaced c If Customer reschedules an Esri Training Event three or fewer days before the scheduled start date, Esn will charge Customer 50 percent of the fee plus the cost of the rescheduled Esri Training Event d If Customer(i)cancels an Esn Training Event 3 or fewer days before the scheduled start date without concurrently rescheduling or(ii)is absent without notice from the Esri Training Event, Customer will be liable for the full Esri Training Event fee e If cancellation of an Esn Training Event is necessary due to causes beyond the party's reasonable control,the affected party may reschedule or cancel the Esri Training Event without incurring any liability f Termination of Agreement Students who are currently registered for an Esri Training Event as of the date of termination of this Agreement may attend the scheduled Esri Training Event, subject to the terms and conditions of this Agreement E204 Legal Page 10 of 25 March 5,2020 7 6 Invoicing, Prepaid Fees a Esri will invoice Customer upon completion of the Esri Training Event or on purchase of a Training Pass On Customer request, Esri will invoice in advance for an Esri Training Event b If Customer is invoiced and pays that invoice prior to the scheduled Esri Training Event, then Customer has 1 year from the date of the invoice to consume Training days For a multiyear order, Training days must be consumed by the end date specified on the Esri quotation Thereafter all prepaid fees are forfeited c Training Pass redemption rates are described at httpsi/www esn.com/training/training-for-organizations) This section 7 6 does not apply to Training provided under the Advantage Program 7 7 Availability and General Provision of Wireless Service a Esri will not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to wireless service interruptions or unavailability 8 0 ADVANTAGE PROGRAM 8.1 Definitions The following definitions supplement the definitions provided in Attachment A. a "Activity Description"means a mutually agreed upon wntten statement that confirms the number of Learning and Services Credits that Esri estimates is required to perform an activity and authorizes Esri to begin work based on such estimate The Activity Description serves as the Task Order for Services provided under the Advantage Program b "Advantage Program"means either Advantage Program, as described at www.esn.com/servicesfeeap/components, or the Advantage Program for Partners, as described at www.esri.com/partners/bpap/components c "Authorized Contact"means Customer's point of contact for the Advantage Program identified below d "Learning and Services Credits"means a contracted unit of exchange that Customer may use to acquire Professional Services,Training, PSS, Esri Managed Cloud Services, or related travel expenses as described below e "Premium Support Services"or"PSS" means a prioritized incident management and technical support program further described at http.//support.esri.com/en/supportlpremrum f "Advisor"means an Esri consultant assigned to work with Customer to provide Professional Services such as advising Customer on GIS strategies, facilitating annual planning and developing and coordinating a collaborative work plan under the Advantage Program 8 2 Advantage Program Description The Advantage Program is provided on an order-by-order, annual subscnption basis and provides strategy and planning support in addition to a menu of items including Professional Services,Training, PSS, and Esn Managed Cloud Services that Customer can select to best meet its needs with guidance from Advisor The Advantage Program may change from time to time The Advantage Program includes the following a Advisor.Customer will receive up to the number of Advisor hours ordered Customer may elect to retain additional Advisor hours for a supplemental price b Annual Planning Meeting.A 1-day annual planning meeting is included c Work Plan A collaboratively developed document is designed to drive the program's implementation through definition of Customer's GIS vision, goals, and objectives d Learning and Services Credits Customer will receive the number of Learning and Services Credits ordered Customer may use the credits toward any combination of Professional Services, Training, PSS, Esri Managed Cloud Services, or related travel expenses Customer may order,for an additional price, additional Learning and Services Credits Learning and Services Credits may be exchanged as described at the applicable Advantage Program website Esn will provide a monthly report outlining usage of Learning and Services Credits to date to the Authorized Contact e Technology Webcasts Esri will provide an email invitation to the Authonzed Contact for webcasts presenting business and technical information related to enterprise GIS E204 Legal Page 11 of 25 March 5 2020 f No Project Services.The Advantage Program is not designed for Esri to provide project-specific Professional Services such as custom application or database development for solutions or applications Esri will not provide these types of Professional Services under the Advantage Program and does not warrant that Deliverables provided under an Advantage Program will comply with Specifications 8 3 Authorized Contact Information Customer identifies the following person as its initial Authorized Contact (to be completed by Customer) Contact Name Address City, State, ZIP Email Telephone Fax 8 4 Current on Maintenance.Customer must remain current on standard Software Maintenance during the Advantage Program term 8 5 Authorization of Learning and Services Credits Use Customer will contact its account manager or Advisor to consume Learning and Services Credits for a particular request Esri will submit an Activity Description by email to Customer for confirmation and authorization to use Learning and Services Credits Customer may authonze the consumption of Learning and Services Credits by submitting an email Esn will begin work and deduct the estimated credit amount stated in the Activity Description from the unused Learning and Services Credits available 8 6 Activity Descriptions for Esri Managed Cloud Services The Activity Description for Esn Managed Cloud Services orders must include the following a The Esri Managed Cloud Services Term The time period in which Esn provides the Esn Managed Cloud Services to Customer The Esn Managed Cloud Services term does not begin until setup and deployment of the data and application are complete b Targeted System Availability The minimum percentage of time that Customer has external access to the application and associated Customer Content through the Internet Examples of supported levels of system availability are 95 percent, 99 percent, and 99 9 percent Not all EMCS offerings include a Targeted System Availability c Number of Anticipated Requests A The number of requests made by an end user through a client(e g , desktop computer,web application, mobile device)and sent to a server(s)that is set up in the Esri Managed Cloud Services Environment by Esn and performs computational tasks on behalf of the end user An example of a common request used in a GIS is a map request A map request is made every time a user pans,zooms, or queries a map service d Amount of Data Storage The storage capacity required to retain digital data,which is to be used and consumed in Customer GIS applications or Cloud Services e Learning and Services Credits Consumption The price for the Esri Managed Cloud Services in Learning and Services Credits The Data storage location may be defined in the Activity Description 8 7 Travel and Per Diem Expenses Any Esri travel and per diem expenses will be quoted separately Travel expenses will include a 15 percent burden, and per diem will be determined in accordance with the full daily limits specified on the government General Services Administration (GSA)website at httos.11www.gsa.c_ov/. Customer will use Learning and Services Credits for travel and per diem expenses 8.8 Notification of Consumed Credits Esn will notify Customer if the authonzed Learning and Services Credits are consumed pnor to completion of the requested work Customer may elect to direct the use of additional Learning and Services Credits, if available, procure additional Learning and Services Credits, or notify Esri to stop E204 Legal Page 12 of 25 March 5,2020 work on such requested work Esn reserves the right to stop work if Customer has consumed all its Learning and Services Credits 8 9 Review of Proposed Activities Any activities proposed to be completed under the Advantage Program will be subject to Esri's review and approval to ensure alignment with the intent of the program 8 10 Invoicing a Esri shall invoice Customer as quoted for the Advantage Program subscription, additional Learning and Services Credits, or Advisor services upon receipt of Customer's order Subsequently Esri will invoice annually at least 30 days in advance of the Advantage Program subscription expiration date Esri will extend the Advantage Program subscription for a subsequent annual term upon receipt of Customer's payment of the renewal invoice Esri will invoice fees for additional Learning and Services Credits or Advisor services upon receipt of Customer's order b Pricing for program renewals and new or additional Services will be in accordance with Esri's standard pricing at the time of purchase or renewal 8 11 Termination and Expiration Upon termination or expiration of an Advantage Program subscription a Services will end as of the expiration or termination date stated, and b Unless either party terminates the Advantage Program subscription for cause, Customer may apply any unused Learning and Services Credits toward any Professional Services,Training, PSS, or related travel expenses that are scheduled as of the termination or expiration date, provided that the Learning and Services Credits are used within 3 months after the termination or expiration date Any other unused Learning and Services Credits will expire 30 days after the expiration or termination date, if Customer renews the Advantage Program subscription within this time period any unused Learning and Services Credits will remain valid for up to 2 years from the purchase date or termination of this Agreement,whichever comes first E204 Legal Page 13 of 25 March 5 2020 ATTACHMENT A GLOSSARY OF TERMS The following glossary of terms applies to all Esri Offerings and Services that Esri may provide to its customers Certain Esn Offerings or Services may not be within the scope of this Agreement. Please disregard any terms that are not applicable to Esn Offerings or Services offered under this Agreement "Affiliate" means any entity that directly or indirectly(i)Controls, (ii)is Controlled by, or(iii)is under common Control with a party,where "Control"means having more than 50 percent of the voting stock or other voting interest in the Controlled entity "API" means application programming interface "ArcGIS Website" means www arcgis corn and any related or successor websites "Authorization Code(s)" means any key, authorization number, enablement code, login credential, activation code,token, user name and password, or other mechanism required for use of Esn Offerings "Beta" means any alpha beta or other prerelease version of a Product "Cloud Services" means Online Services and Esri Managed Cloud Services "Content" means data, images, photographs, animations,video, audio,text, maps, databases, data models, spreadsheets, user interfaces, graphics components, icons, software, and other resources used in connection with Esri Offerings and Services 'Control' means having more than 50 percent of the voting stock or other voting interest in the Controlled entity "Customer Content" means any Content that Customer provides, uses, or develops in connection with Customer's use of Esri Offerings or Services, including Value-Added Applications Customer Content excludes any feedback, suggestions, or requests for improvements that Customer provides to Esn "Data" means any commercially available digital dataset(s) including, but not limited to, geographic vector data, raster data reports,or associated tabular attributes that Esn bundles with other Esn Offerings or delivers independently "Deliverables" means anything that Esri delivers to Customer as a result of performance of Professional Services "Documentation" means all user reference documentation that Esn provides with a Deliverable or an Esri Offering "Esri Managed Cloud Services" means a Customer-specific cloud infrastructure, Software, Data, and network platform that Esn hosts, manages, and makes available to Customer or Customer's end users via the Internet "Esri Offering(s)" means any Product or Documentation If Esri provides Training or Professional Services directly to Customer, then Esri Offerings also include Deliverables and Training Materials Esri Offerings exclude Services and Third-Party Content "GIS"means geographic information system "Maintenance" means a subscription program that Esn provides and that entitles Customer to Product updates and other benefits such as access to technical support and self-paced, web-based learning resources E204 Legal Page 14 of 25 March 5 2020 "Malicious Code"means software viruses, worms,time bombs,Trojan horses, or any other computer code, files, denial of service, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment Online Services"means any commercially available, Internet based geospatial system that Esn provides, including applications and associated APIs for stonng managing publishing, and using maps, data, and other information Online Services exclude Data and Content "Ordering Document(s)"means a sales quotation, Maintenance renewal quote, purchase order, proposal,Task Order or other document identifying Esn Offerings, updates, or Services that Customer orders "Perpetual License"means a license to use a version of the Esn Offering for which applicable license fees have been paid,indefinitely, unless terminated by Esn or Customer as authorized under this Agreement "Product(s)"means Software, Data, and Online Services "Professional Services"means any development or consulting services that Esn provides to Customer "Sample(s)"means sample code, sample applications add-ons, or sample extensions of Products "Service(s)"means Maintenance If Esri provides Esn Managed Cloud Services,Training or Professional Services directly to Customer,then Services also include Esn Managed Cloud Services,Training, and Professional Services "Software"means any proprietary commercial off-the-shelf software, excluding Data, accessed or downloaded from an Esn-authorized website or that Esn delivers on any media in any format including backups, updates, service packs, patches, hot fixes, or permitted merged copies "Specification(s)"means(i)the Documentation for Software and Online Services, (ii)the scope of work set forth in any Task Order, or(iii)Esri's published course descriptions for Training "Task Order(s)" means an Ordenng Document for Services "Term License"means a license for use of an Esri Offering for a limited time period ("Term") "Third-Party Content"means any Content that Customer may obtain from a third party website or that persons other than Esri employees, suppliers, or contractors may directly contribute to Esn's website "Training" means (i)Product training or(ii)related training that Esri provides under this Agreement "Training Materials"means digital or printed content required to complete Training,which may include, but is not limited to, workbooks, data,concepts exercises, assessments,and exams "Value Added Application(s)"means an application developed by Customer for use in conjunction with the authorized use of any Software, Data, or Online Services E204 Legal Page 15 of 25 March 5,2020 ATTACHMENT B GENERAL TERMS AND CONDITIONS The following general terms and conditions apply to all Esri Offerings and Services that Esri may offer to its customers Certain Esri Offerings or Services may not be available under this Agreement Please disregard any terms that are not applicable to Esri Offerings or Services offered under this Agreement ARTICLE B 1—GENERAL USE RESTRICTIONS Except as expressly permitted in this Agreement,Customer will not a Sell, rent, lease,sublicense, distribute, lend,time-share, or assign Services or Esri Offerings, b Distribute or provide direct access to Services or Esri Offerings to third parties, in whole or in part, including, but not limited to, extensions, components, or DLLs, c Distribute Authorization Codes to third parties, d Reverse engineer decompile or disassemble any Product or Deliverable delivered in compiled form, e Make any attempt to circumvent the technological measure(s)that controls access to or use of Esri Offerings, f Store, cache, use, upload,distribute, or sublicense Content or otherwise use Esri Offerings in violation of Esn's or a third party's rights, including intellectual property rights, privacy rights, nondiscnmination laws, export laws, or any other applicable law or regulation, g Remove or obscure any Esri or its licensors'patent, copyright,trademark, proprietary rights notices, or legends contained in or affixed to any Esn Offerings, output, metadata file, or online or hard-copy attribution page of any Data or Documentation, h Unbundle or independently use individual or component parts of Esri Offerings, i Incorporate any portion of Esn Offerings into a product or service for third-party use that competes with the Esri Offerings, j Publish or in any other way communicate the results of benchmark tests run on Beta Products without the prior written permission of Esn and its licensors, or k Use incorporate modify distnbute provide access to, or combine any Esri Offerings in a manner that would subject any Esri Offering to open-source or open-database license terms that require any part of the Esri Offering to be 1 Disclosed in source code form to third parties, 2 Licensed to third parties for the purpose of making derivative works, or 3 Redistributable to third parties at no charge, or I Generate revenue by providing access to Software or Online Services through a Value-Added Application These restrictions will not apply to the extent that they conflict with applicable law or regulation ARTICLE B 2—TERM AND TERMINATION B.2.1 Customer may terminate this Agreement or any Esn Offerings license or subscription at any time upon written notice to Esn Termination without cause does not entitle Customer to receive any refund of fees paid Any right to terminate pending Services engagements for convenience is set forth in the applicable section in the body of this Agreement Either party may terminate this Agreement or any license or subscription for a material breach that is not cured within 30 days of written notice to the breaching party Upon any termination of this Agreement for breach, Esri will stop providing Services Any licenses in Esri Offerings that survive termination of this Agreement continue under the terms of this Agreement B 2 2 If Esri terminates this Agreement following Customer's breach,then Esn may also, at its election,terminate Customer's licenses or subscnptions to Esn Offenngs If Customer terminates this Agreement for cause or convenience, then Customer may,at its election, also terminate Customer's licenses or subscnptions to Esri Offerings E204 Legal Page 16 of 25 March 5 2020 B.2 3 Upon any termination or expiration of a license or subscription, Customer will a Stop accessing and using the terminated or expired Esn Offerings b Clear any client-side data cache derived from the terminated or expired Cloud Services, and c Stop using and uninstall, remove, and destroy all copies of the terminated or expired Esn Offerings in Customer's possession or control including any modified or merged portions thereof, in any form, and execute and deliver evidence of such actions to Esn or its authorized distributor Esri may stop performing Services immediately upon written notice to Customer if a bankruptcy or insolvency proceeding is commenced by or against Customer until the trustee cures any existing defaults and provides adequate assurance of future performance under this Agreement This Agreement terminates upon the insolvency, liquidation, or dissolution of either party ARTICLE B 3—LIMITED WARRANTIES AND DISCLAIMERS B 3 'I Limited Warranties. Except as disclaimed below, Esri warrants to Customer that(i) Products and Training will substantially comply with the applicable Specifications and (ii)Services will substantially conform to the professional and technical standards of the industry The warranty period for Esri Offerings offered under a Perpetual License and for Services runs for 90 days from the date of delivery or from the date of acceptance if this Agreement provides an acceptance period The warranty penod for Esn Offerings offered under a subscription or Term License basis runs for the lesser of(i)the duration of the subscription or term or(ii)90 days from delivery or acceptance if this Agreement provides an acceptance period B.3.2 Special Disclaimer Third-Party Content, Data; Samples, hot fixes, patches, updates, Online Services provided at no charge; and trial, evaluation,and Beta Products are delivered "as is"and without warranty of any kind B 3 3 General Disclaimer Except for the express limited warranties set forth in this Agreement, Esri disclaims all other warranties or conditions of any kind,whether express or implied, including, but not limited to,warranties or conditions of merchantability,fitness for a particular purpose,and noninfringement of intellectual property rights Esri is not responsible for any nonconformities with Specifications or loss,deletion, modification,or disclosure of Customer Content caused by Customer's modification of any Esri Offering other than as specified in the Documentation Esri does not warrant that Esn Offerings, or Customer's operation of the same,will be uninterrupted, error free,fault tolerant, or fail- safe or that all nonconformities can or will be corrected Esri Offerings are not designed, manufactured, or intended for use in environments or applications that may lead to death, personal injury, or physical property or environmental damage Customer should not follow any navigational route suggestions that appear to be hazardous, unsafe,or illegal Any such uses will be at Customer's own risk and cost B.3.4 Disclaimers a Internet Disclaimer Neither party will be liable for damages under any theory of law related to the performance or discontinuance of operation of the Internet or to regulation of the Internet that might restrict or prohibit the operation of Cloud Services b Third-Party Websites,Third-Party Content. Esri is not responsible for any third-party website or Third- Party Content that appears in or is referenced by Esri Offerings or Esri websites, including www esri corn and www.arcois.com. Providing links to third-party websites and resources does not imply an endorsement,affiliation,or sponsorship of any kind B.3.5 Exclusive Remedy Customer's exclusive remedy and Esri's entire liability for breach of the limited warranties in this section will be to replace any defective media and to(i) repair correct, or provide a workaround for the applicable Esri Offering or Services or(ii)at Esri's election terminate Customer's right to use and refund the fees paid for Esri Offerings or Services that do not meet Esri's limited warranties E204 Legal Page 17 of 25 March 5 2020 ARTICLE B 4—LIMITATION OF LIABILITY B 4.1 Disclaimer of Liability Neither Customer, Esri, nor any Esri distributor or third party licensor will be liable for any indirect,special, incidental,or consequential damages, lost profits, lost sales, loss of goodwill, costs of procurement of substitute goods or services, or damages exceeding the applicable license fees, or current subscription fees,or Services fees paid or owed to Esri for the Esri Offerings or Services giving rise to the cause of action B 4.2 The limitations and exclusions of liability in the preceding paragraph do not apply to Customer's infringement misuse or misappropriation of Esn's or Esri's licensors'intellectual property rights, either party's indemnification obligations, gross negligence, willful misconduct, or violations of the Export Compliance clause of this Agreement or any applicable law or regulation B 4 3 Applicability of Disclaimers and Limitations Esri or its authorized distributor has set its fees and entered into this Agreement in reliance on the disclaimers and limitations in this Agreement, the fees reflect an allocation of nsk that is an essential basis of the bargain between the parties These limitations will apply whether or not a party is aware of the possibility of any damage and notwithstanding any failure of essential purpose of any exclusive, limited remedy B 4.4 The foregoing disclaimers, limitations, and exclusions may be invalid in some jurisdictions and apply only to the extent permitted by applicable law or regulation in Customer's jurisdiction Customer may have additional rights that may not be waived or disclaimed Esn does not seek to limit Customer's warranty or remedies to any extent not permitted by law ARTICLE B 5—INDEMNIFICATIONS B 5 1 Definitions The following definitions supplement the definitions provided in Attachment A a 'Claim" means any claim, action,or demand by a third party b "Indemnitees" means Customer and its directors, officers,and employees c "Infringement Claim(s)" means any Claim alleging that Customer's use of or access to any Esri Offering or Service infringes a patent, copyright, trademark, or trade secret d "Loss(es)"means expenditure damage award settlement amount cost or expense including awarded attorneys'fees. B 5 2 Infringement Indemnity a Esn will defend, hold all Indemnitees harmless from, and indemnify any Loss arising out of an Infringement Claim b If Esn determines that an Infringement Claim is valid, Esn may, at its expense, either(i)obtain rights for Customer to continue using the Esn Offerings or Services or(ii)modify the Esri Offerings or Services while maintaining substantially similar functionality If neither alternative is commercially reasonable, Esri may terminate Customer's right to use the Esri Offerings or Services arid will refund any (a)license fees that Customer paid for the infringing Esri Offerings or Services acquired under a Perpetual License, prorated on a 5-year, straight-line depreciation basis beginning from the initial date of delivery or(b)unused portion of fees paid for Term Licenses, Subscriptions, and Maintenance c Esri has no obligation to defend an Infringement Claim or to indemnify Customer to the extent the Infringement Claim arises out of(i)the combination or integration of Esri Offerings or Services with a product, process, system or element that Esri has not supplied or specified in the Specification (ii)alteration of Esri Offenngs or Services by anyone other than Esri or its subcontractors, (iii)compliance with Customer's specifications, or(iv)use of Esri Offerings or Services after Esri either provides a modified version to avoid infringement or terminates Customer's right to use the Esri Offenngs or Services B 5 3 General Indemnity Esri will defend and hold all Indemnitees harmless from, and indemnify any Loss arising out of, any Claim for bodily injury, death, or tangible or real property damage brought against any of the Indemnitees to the extent arising from any negligent act or omission or willful misconduct by Esn or its directors, officers, employees, or agents performing Services while on Customer's site E204 Legal Page 18 of 25 March 5 2020 B 5 4 Conditions for Indemnification As conditions for indemnification, Indemnitee will (i)promptly notify Esn in writing of the Claim, (ii)provide all available documents describing the Claim, (iii)give Esri sole control of the defense of any action and negotiation related to the defense or settlement of any Infringement Claim, and (iv)reasonably cooperate in the defense of the Infnngement Claim at Esn's request and expense B 5 5 This section sets forth the entire obligation of Esri, its authorized distributor, and its third party licensors regarding any Claim for which Esri must indemnify Customer ARTICLE B 6—INSURANCE If Esri is providing Services, Esri will carry, at a minimum,the following coverage a Comprehensive general liability or commercial general liability with a minimum coverage of$1,000,000 00 (US dollars)combined single limit per occurrence for bodily injury, including death, and property damage liability to include the following 1 Premises and operations 2. Blanket contractual liability, 3 Broad form property damage, 4 Independent contractors, 5 Personal injury,with employee exclusion deleted,and 6 Completed operations b Workers'compensation insurance with waiver of subrogation, in an amount that complies with statutory limits ARTICLE B.7—SECURITY AND COMPLIANCE B 7 1 Security. Esri publishes its security capabilities at http.//trust.arcgis.corn Customer may give Esri personnel access to Customer systems or to Customer or third-party personal information, controlled information, or sensitive data if access is essential for Esri's performance of Services and if Esri expressly agrees to such access Esn will use reasonable administrative,technical, and physical safeguards to protect such data and guard against unauthorized access Customer bears responsibility to(i)confirm that Esri's published security and privacy controls meet all applicable legal requirements for protection of Customer Content and(ii)upload or share Customer Content through Cloud Services only when it is legal to do so Esri is not responsible to review Customer Content to ensure compliance with applicable laws and regulations Customer must contact Esri at securesu000rt(c�esr€ corn for further instruction before providing any Customer Content that requires security measures other than Esri's published security capabilities. B 7.2 Malicious Code Esri will use commercially reasonable efforts to ensure that Esn Offerings will not transmit any Malicious Code to Customer Esri is not responsible for Malicious Code that Customer introduces to Esri Offerings or that is introduced through Third-Party Content. B 7 3 Export Compliance. Each party will comply with all applicable export laws and regulations, including the US Department of Commerce's Export Administration Regulations (EAR), the US Department of State's International Traffic in Arms Regulations(ITAR), and other applicable export laws Customer will not export, reexport, transfer, release, or otherwise dispose of, in whole or in part, or permit access to or transfer or use of Services or Esn Offerings to any United States embargoed countnes or denied entities or persons except in accordance with all then-current applicable US government export laws and regulations Customer will not export, reexport,transfer, or use Services or Esn Offerings for certain missile, nuclear, chemical, or biological activities or end uses without proper authorization from the US government Customer shall immediately notify Esn in writing if any US government entity or agency denies, suspends, or revokes Customer's export privileges Customer will not upload, store, or process in Cloud Services any Customer Content that(i) has an Export Control Classification Number(ECCN)other than EAR99 or(ii)is controlled for export from the United States under ITAR Customer will notify Esri in advance if Esri's performance of any Services or provision of any Esri Offenngs is related to any defense article, defense service or technical data, as defined under the ITAR Sections 120 6, 120 9, and 120 10, respectively, Esn will not perform any such Services or provide any such Esn Offerings until Esri obtains any E204 Legal Page 19 of 25 March 5 2020 necessary export license from the US government Customer will reasonably assist Esri in applying for and obtaining an export license if needed B 7.4 Privacy Esn will process personal data according to the terms of the Data Processing Addendum available at https//www esn corn/en us/privacy/overview ARTICLE B 8—CLOUD SERVICES B 8 1 Prohibited Uses. Customer shall not provide Customer Content or otherwise access or use Cloud Services in a manner that a Creates or transmits spam, spoofings, or phishing email or offensive or defamatory material or stalks or makes threats of physical harm, b Stores or transmits any Malicious Code, c Violates any law or regulation, d Infringes or misappropriates the rights of any third party e Probes, scans, or tests the vulnerability of Cloud Services or breach any security or authentication measures used by Cloud Services without written approval from Esn's product security officer, or f Benchmarks the availability, performance, or functionality of Cloud Services for competitive purposes B 8 2 Service Interruption System failures or other events beyond Esri's reasonable control may interrupt Customer's access to Cloud Services Esri may not be able to provide advance notice of such interruptions B 8.3 Customer Content. a Customer grants Esri and its subcontractors a nonexclusive, nontransferable,worldwide right to host, run, modify, and reproduce Customer Content as needed to provide Cloud Services to Customer Esri will not access, use,or disclose Customer Content without Customer's wntten permission except as reasonably necessary to support Customer's use of Cloud Services Except for the limited rights granted to Esn under this Agreement, Customer retains all its rights, title,and interest in the Customer Content b If Customer accesses Cloud Services with an application provided by a third party, Esn may disclose Customer Content to such third party as necessary to enable interoperation between the application, Cloud Services, and Customer Content c Esri may disclose Customer Content if required to do so by law or regulation or by order of a court or other government body, in which case Esri will reasonably attempt to limit the scope of disclosure d. When Customer's use of Cloud Services ends, Esri will either 1 Make Customer Content available to Customer for download for a penod of 30 days unless Customer requests a shorter window of availability or Esri is legally prohibited from doing so; or 2 Download all Customer Content in Esn's possession to a medium of Customer's choosing and deliver such Customer Content to Customer Esri will have no further obligations to store or return Customer Content at the conclusion of the Cloud Services B.8.4 Removal of Customer Content Esri may remove or delete Customer Content if there is reason to believe that uploading Customer Content to or using it with Cloud Services materially violates this Agreement If reasonable under these circumstances, Esri will notify Customer before removing Customer Content Esri will respond to any Digital Millennium Copyright Act takedown notices in accordance with Esri's copyright policy, available at www.esri.com/legalldmca policy. B 8 5 Service Suspension Esri may suspend access to Cloud Services(i)if Customer materially breaches this Agreement and fails to timely cure the breach, (ii)if Esri reasonably believes that Customer's use of Cloud Services will subject Esn to immediate liability or adversely affect the integnty,functionality, or usability of the Cloud Services, (iii)for scheduled maintenance (iv)to enjoin a threat or attack on Cloud Services, or(v)if Cloud Services become prohibited by law or regulated to a degree that continuing to provide them would impose a E204 Legal Page 20 of 25 March 5,2020 commercial hardship.When feasible, Esn will notify Customer of any Cloud Services suspension beforehand and give Customer reasonable opportunity to take remedial action Esn is not responsible for any damages, liabilities, or losses that may result from any interruption or suspension of Cloud Services or removal of Customer's content as described above B 8 6 Notice to Esri Customer will promptly notify Esri if Customer becomes aware of any unauthorized use of Customer's subscription or any other breach of security regarding Cloud Services ARTICLE B 9—GENERAL PROVISIONS B 9 1 Payment Customer will pay each correct invoice no later than 30 days after receipt and will remit payment to the address stated on the invoice Customers outside the United States will pay the distributor's invoices in accordance with the distributor's payment terms B 9 2 Feedback Esri may freely use any feedback, suggestions, or requests for Product improvement that Customer provides to Esri B.9.3 Patents Customer may not seek, and may not permit any other user to seek, a patent or similar nght worldwide that is based on or incorporates any Products This express prohibition on patenting will not apply to Customer's software and technology except to the extent that Products, or any portion thereof are part of any claim or preferred embodiment in a patent application or a similar application B 9 4 Restrictions on Solicitation Neither party will solicit for hire any employee of the other party who is associated with the performance of Services during the performance of the Services and for a period of 1 year thereafter This does not restrict either party from publicly advertising positions for hire in newspapers, professional magazines, or Internet postings B 9 5 Taxes and Fees, Shipping Charges. Pricing of Esri Offerings and Services that Esn quotes to Customer is exclusive of any and all applicable taxes or fees including, but not limited to, sales tax, use tax, or value-added tax (VAT), customs, duties,or tariffs,shipping and handling charges, and vendor enrollment fees Esri will add any fees that it is required to pay to the total amount of its invoice to Customer Esri may include estimated taxes and shipping and handling charges in its quotations but may adjust these fees on invoicing For Customers outside the United States,the distributor may quote taxes or fees in accordance with its own policies B 9 6 Compliance Review Customer will keep accurate and complete records and accounts pertaining to its compliance with its obligations under this Agreement Esn or its authorized distributor may conduct a compliance review of these records and accounts with no less than 14 business days'written notice or may appoint an independent third party to conduct such a compliance review on its behalf Customer will promptly correct any noncompliance identified during the compliance review Neither Esn nor Esri's distributor may conduct a compliance review of Customer within 12 months after the conclusion of any prior compliance review that does not reveal any matenal Customer noncompliance B 9 7 No Implied Waivers.The failure of either party to enforce any provision of this Agreement is not a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision B 9 8 Severability If any provision of this Agreement is held to be unenforceable for any reason, (i) such provision will be reformed only to the extent necessary to make the intent of the language enforceable, and (ii)all other provisions of this Agreement will remain in effect B 9 9 Successor and Assigns.Customer will not assign, sublicense, or transfer Customer's rights or delegate Customer's obligations under this Agreement without Esri's and its authorized distributor's prior written consent, and any attempt to do so without consent will be void This Agreement will be binding on the respective successors and assigns of the parties to this Agreement Notwithstanding, a contractor under contract to the government to deliver Products may assign this Agreement and Products acquired for delivery to its government customer upon written notice to Esri, provided the government customer assents to the terms of this Agreement E204 Legal Page 21 of 25 March 5 2020 Upon mutual agreement, Esn's Affiliates may provide Services under the terms of this Agreement, in such cases, the Ordering Documents will identify the Affiliate as the party that provides the Services Esn's distnbutors are not Affiliates of Esri B 9 10 Survival of Terms The Glossary of Terms and provisions of the following Articles of these General Terms and Conditions will survive the expiration or termination of this Agreement "Limited Warranties and Disclaimers," "Limitation of Liability,""Indemnifications,"and "General Provisions" B 9 11 US Government Customer The Products are commercial items, developed at private expense, provided to Customer under this Agreement If Customer is a US government entity or US government contractor, Esri licenses or provides subscriptions to Customer in accordance with this Agreement under FAR Subparts 12 211/12 212 or DFARS Subpart 227 7202 Esn Data and Online Services are licensed or subscribed under the same DFARS Subpart 227 7202 policy as commercial computer software for acquisitions made under DFARS Products are subject to restrictions, and this Agreement strictly governs Customer's use, modification, performance, reproduction, release, display, or disclosure of Products Agreement provisions that are inconsistent with federal law regulation will not apply A US government Customer may transfer Software to any of its facilities to which it transfers the computer(s)on which it has installed such Software If any court, arbitrator, or board holds that a US government Customer has greater rights to any portion of Products under applicable public procurement law, such rights will extend only to the portions affected ArcGIS Online has been granted FedRAMP tailored low authorization but does not meet higher security requirements including those found in DFARS 252 239 7010 B 9 12 Governing Law This Agreement is not subject to the United Nations Convention on Contracts for the International Sale of Goods a Government Entities If Customer is a government entity,the applicable laws of Customer's jurisdiction govern this Agreement b Nongovernment Entities US federal law and the law of the State of California exclusively govern this Agreement excluding their respective choice of law principles B 9 13 Dispute Resolution The parties will use the following dispute resolution processes a Equitable Relief Either party will have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or proving injury as a condition for relief b US Government Agencies This Agreement is subject to the Contract Disputes Act of 1978, as amended (41 USC 601-613) c Other Government Entities Esri will comply with mandatory dispute resolutions under applicable law d Arbitration Except as noted above,the parties will submit to binding arbitration to resolve any dispute arising out of or relating to this Agreement that cannot be settled through negotiation If Customer is in the United States or one of its territories or outlying areas,the Commercial Arbitration Rules of the American Arbitration Association will govern the arbitration proceedings If Customer is outside the United States,the Rules of Arbitration of the International Chamber of Commerce will govern the proceedings The parties will select a single arbitrator in accordance with the applicable arbitration rules The language of the arbitration will be English Arbitration will be at an agreed-upon location Either party will at the request of the other make available documents or witnesses relevant to the major aspects of the dispute B 9 14 Force Majeure A party will not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond the party's reasonable control Such causes may include, but are not limited to, acts of God,war, strikes, labor disputes, cyber attacks, laws, regulations, government orders, or any other force majeure event B 915 Independent Contractor Esri is and at all times will be an independent contractor Nothing in this Agreement creates an employer/employee, principal/agent, or joint venture relationship between Esri or its authorized distributor and Customer No party has any authority to enter into contracts on behalf of another party or otherwise act on behalf of another party E204 Legal Page 22 of 25 March 5 2020 B 916 Notice Customer may send notices required under this Agreement to Esri at the following address Environmental Systems Research Institute, Inc Attn Contracts and Legal Department 380 New York Street Redlands, CA 92373-8100 USA Tel 909-793-2853 Email LegalNotices(aesri.com E204 Legal Page 23 of 25 March 5 2020 ATTACHMENT C SAMPLE TASK ORDER Esri Agreement No Task Order No In accordance with the terms and conditions of the above-referenced Agreement between Environmental Systems Research Institute, Inc ("Esri"), and ("Customer"), ("Customer Address"),this Task Order authorizes preparation and provision of the Deliverables described and in accordance with the terms schedule and start/end date(s)specified below 1 Scope of Work [As applicable, specifically identify and describe Deliverables including custom code, map data, technical data(including technical assistance), and the resources to be provided by Customer(including Customer-supplied personnel, software, hardware, and digital or hard-copy data) and place of delivery and location where technical assistance will be provided] In addition to the foregoing, Customer agrees that its employees, representatives, and subcontractors will cooperate and communicate with Esri during performance of this Task Order Without cost to Esri, Customer shall provide,allow access to, or assist Esri in obtaining all data Esri requests for performance of this Task Order, including, but not limited to, (1) copies of previously prepared reports, maps, plans, surveys, records, and other documents in the control or possession of Customer and (2)copies of ordinances, codes regulations, or other governmental documents 2 Contract Type [Firm Fixed Price (FFP)or Time and Materials(T&M)] 3 Total Task Order Value(if FFP)or Not-to-Exceed Value (if T&M) 4 Customer Address for the Receipt of Esri Invoices 5 Delivery Schedule or Start/End Date(s)for Each Deliverable 6 Special Considerations 7 Esri Project Manager [insert name, telephone, fax, and email address] Esn Senior Contract Administrator [insert name telephone fax and email address] Customer Project Manager [insert name, telephone, fax, and email address] Customer Senior Contract Administrator [insert name, telephone, fax, and email address] Customer Accounts Payable Contact [insert name, telephone, fax, and email address] ACCEPTED AND AGREED ENVIRONMENTAL SYSTEMS Jsample only—do not sign] RESEARCH INSTITUTE, INC (Customer) (Esri) Signature !sample only—do not sign! Signature !sample only—do not sign! Printed Name Printed Name Title Title Date Date E204 Legal Page 24 of 26 March 5,2020 ATTACHMENT D TIME AND MATERIALS RATE SCHEDULE See Quotation for Pricing E204 Legal Page 25 of 25 March 5 2020