5.4. ERMUSR 11-15-2016 (2) Elk River �.
Municipal Utilities UTILITIES COMMISSION MEETING
TO: FROM:
Elk River Municipal Utilities Commission Mike O'Neill—Technical Services Superintendent
John Dietz—Chair
Al Nadeau—Vice Chair
Daryl Thompson—Trustee
MEETING DATE: AGENDA ITEM NUMBER:
November 15, 2016 5.4
SUBJECT:
Itron MV90 Master Sales Agreement
BACKGROUND:
ERMU needs to upgrade the Itron software that the metering department uses to upload and
analyze metering data. The current software Itron Energy Audit is no longer supported. This
change has been known and planned for as the replacement costs for the software were budgeted
and approved with the 2016 ERMU budget. The 2016 budgeted cost for the software is $32,000.
DISCUSSION:
ERMU has approximately 11,000 Itron electric meters installed in our distribution system. There
is not a third party software that will perform the same work as the Itron software for the meters
already installed. From a financial and operational perspective, it is not practical at this time to
replace all of the Itron meters on the system with meters from a different manufacturer to create
an opportunity to select different software.
Itron, the software provider for the new software program MV90, has a Master Sales agreement
that they require all who chose to purchase their software sign. This brings with it limitations in
liability and restrictions in information protection.
With ERMU's legal counsel, Itron and ERMU have made modifications to the Master Sales
agreement. However, there are still issues with the agreement from ERMU's legal counsel's
perspective. Staff and legal counsel agree that these legal risks still existing in the agreement
should be clearly communicated to the Commission prior to the execution of the contract. The
contract is attached. Peter Beck, ERMU's legal counsel, will be available via conference call to
walk through the agreement with the Commission and answer questions.
ACTION:
Staff requests Commission approval to execute the Itron MV90 Master Sales Agreement,
Indirect Sales Agreement, and Maintenance Agreement.
POWERED BY
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ATTACHMENTS:
• Itron MV90 Master Sales Agreement
• Itron Indirect Sales Agreement
• Itron Maintenance Agreement
POWERED BY
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NATURE
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MASTER SALES AGREEMENT
TERMS AND CONDITIONS
This Master Sales Agreement(the"Agreement") is made and entered into as of August 5,2016(the
"Effective Date")by and between Itron, Inc., a Washington corporation with a principal place of business
at 2111 N.Molter Road, Liberty Lake, Washington 99019 ("Itron"), and Elk River Municipal Utilities, a
Minnesota municipal corporation with a principal place of business at 1705 Main Street, Elk River,MN
55330-1137 ("Customer"). Itron and Customer may each be referred to as a"Party" and together as the
"Parties."
1. Scope. This Agreement sets forth the terms governing all Technology& Services Addenda under
this Agreement. The attached Transaction Summary identifies which Addenda are made a part of this
Agreement.
2. Technology & Services Addenda. Technology& Services Addenda may set forth additional terms
and conditions applicable to specific products and services purchased by Customer. In the event of a
conflict between this Agreement and an Addendum,the Addendum will control to the extent necessary to
resolve the conflict.
3. Purchase Orders. All purchase orders will be governed by the terms of this Agreement. Pre-
printed terms on a purchase order will be null and void, and no contingency, addition, or conflicting term
contained on any purchase order will be binding upon Itron.
4. Fees,Taxes,and Payment.
4.1. Fees. Fees will be specified in a pricing summary made a part of this Agreement. Itron reserves the
right to modify the pricing summary from time-to-time during the term of this Agreement upon thirty(30)
days' prior written notice to Customer for any new purchase orders.
4.2. Taxes. Prices and charges for products and services are exclusive of taxes, levies, duties and
similar governmental assessments("Taxes"),all of which are the responsibility of Customer to pay.
Customer is responsible for paying all Taxes applicable to transactions. If Itron has the legal obligation to
pay or collect Taxes for which Customer is responsible,the appropriate amount shall be invoiced to and
paid by Customer, unless Customer provides a valid tax exemption certificate or direct pay permit
authorized by the appropriate taxing authority. Itron is solely responsible for taxes assessable against Itron
based on its income, property and employees.
4.3. Payment. All purchase orders are subject to credit approval. Payment terms are net thirty(30) days
from the date of invoice. All payments shall be made in US currency. Late payments shall accrue interest
from the due date at the rate of 1.0%of the outstanding balance per month, or the maximum rate permitted
by law until the date paid, and Itron may condition future renewals and purchase orders on payment terms
shorter than thirty(30)days.
5. Term and Termination.
5.1. Term. The term of this Agreement begins on the Effective Date and continues for a period of five
(5)years and shall automatically renew for one(1)year periods—up to three(3)years' renewal of annual
renewal terms in total—unless either Party provides ninety(90)days' prior written notice by either Party
of intent not to renew prior to the applicable expiration date.
5.2. Termination for Convenience. Either Party may terminate this Agreement for convenience upon
ninety(90)days' prior written notice to the other.
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5.3. Termination for Cause. Other than Customer's nonpayment which shall constitute a breach of this
Agreement if full payment is not received within five (5)days of written notice, either Party may terminate
this Agreement by providing the other Party with written notice if the other Party(i)becomes insolvent,
executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership
proceedings; (ii)breaches its obligations related to the other Party's confidential information; or(iii)
commits a material breach of this Agreement that remains uncured for thirty(30)days following delivery
of written notice of such breach(including,but not necessarily limited to, a statement of the facts relating
to the breach or default,the provisions of this Agreement that are in breach or default and the action
required to cure the breach or default).
5.4. Surviving Provisions. Any provision of this Agreement that contemplates performance or
observance subsequent to termination or expiration of this Agreement shall survive termination or
expiration and continue in full force and effect for the period so contemplated.
6. Confidentiality.
6.1. Definitions. (A)"Confidential Information"means(1)this Agreement and the discussions,
negotiations and proposals related to this Agreement and(2) information, whether provided directly or
indirectly from the other Party in writing, orally, by electronic or other data transmission or in any other
form or media or obtained through on-site visits at Itron or Customer facilities and whether furnished or
made available before or after the date of this Agreement, that is confidential, proprietary or otherwise not
generally available to the public. Confidential Information does not include information that is: (a)
rightfully known to the receiving Party before negotiations leading up to this Agreement; (b)
independently developed by the receiving Party without relying on the disclosing Party's Confidential
Information; (c)part of the public domain or is lawfully obtained by the receiving Party from a third party
not under an obligation of confidentiality; or(d) free of confidentiality restrictions by agreement of the
disclosing party. (B)"Receiving Party"means the Party receiving Confidential Information of the other.
(C) "Disclosing Party" means the Party disclosing Confidential Information to the other Party.
6.2. Obligations. The Receiving Party will keep Confidential Information of the Disclosing Party
strictly confidential and will not disclose it to any third party during the term of this Agreement and for a
period of three(3)years after termination or expiration of this Agreement.
6.3. Permitted Disclosure. The Receiving Party may disclose Confidential Information to its affiliates,
agents, contractors, and legal representatives, but only if they have a need to know and an obligation to
protect the Disclosing Party's Confidential Information that is at least as restrictive as the confidentiality
provisions of this Agreement.
Itron recognizes that Customer is subject to Minnesota public records laws under which Customer is
required to disclose all records characterized as public under state law, unless an exemption applies. For
that reason,Customer agrees that if a record regarding Itron Confidential Information is requested under
public records laws, Customer will provide Itron with prompt written notice of such request prior to
producing any records so that Itron has an opportunity to seek court protection of the requested records.
Customer also agrees to reasonably cooperate with Itron to mitigate the disclosure of such Confidential
Information to the extent requested by Itron and allowed by applicable public records laws.
6.4. Return of Confidential Information. The Receiving Party will destroy or return the Disclosing
Party's Confidential Information within fourteen(14)days after receipt of the Disclosing Party's written
request. With the exception of Customer Data(as defined in Section 7),the Receiving Party may retain a
copy of Confidential Information as part of archival records(including backup systems)the Receiving
Party keeps in the ordinary course of business,or if required by law or regulation;provided however, that
any Confidential Information so retained will continue to be Confidential Information pursuant to the
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terms of this Agreement and the Receiving Party will continue to be bound by the terms of this Agreement
with respect to such Confidential Information.
7. Privacy.
7.1. General. If, in the course of providing any services, Itron has or obtains,to any extent and for any
reason, any access to Customer Data,then the terms and conditions of this Section 7 will apply.
7.2. Definition of Customer Data. "Customer Data" means any information about Customer's existing
or prospective customers that Itron acquires, develops, or derives under this Agreement. Customer
Data may include,without limitation, any personally identifying information relating to an existing
or prospective customer, or any other information that, either individually or when combined with
other information could be used to derive information specific to a particular customer or prospective
customer,which information is not generally available to the public and which Itron acquires or
derives in carrying out its obligations under this Agreement. Customer Data includes,but is not
limited to, information regarding a User's identity social security number,telephone number, credit
card number, e-mail address, account information, service purchase and usage information.
7.3. Use of Customer Data. Itron may only collect, access, use, maintain, or disclose Customer Data to
fulfill its obligations under this Agreement. Customer exclusively owns all Customer Data and Itron
agrees to return, or at the election of Customer, destroy(and confirm in writing the destruction)all
Customer Data upon the termination or expiration of this Agreement, or earlier if requested to do so in
writing by Customer.
7.4. Reservation of Rights to Customer. Subject to the limited rights granted by Customer hereunder,
Itron acquires no right,title or interest from Customer or its licensors under this Agreement in or to
Customer Data, including any Intellectual Property(defined below)rights in that Customer Data.
7.5. Safeguards. Itron will employ administrative, physical, and technical safeguards that are
reasonably designed to prevent unauthorized collection, access, disclosure, and use of Customer Data
while in its custody("Safeguards"). The Safeguards Itron employs must: (1)meet, at a minimum,
industry practice; and(2)be reasonably designed to ensure that only Itron personnel with a need to know
the Customer Data have access to it. Itron will promptly notify Customer of any known breach of any
Safeguards,and Itron and Customer will cooperate to investigate and remedy any such breach and any
related dispute, inquiry, or claim.
7.6. Miscellaneous. This Section 7 supplements Section 6("Confidentiality"), and the provisions of this
Section 7 control if they conflict with Section 6("Confidentiality"). A breach of any Customer Data
provision may result in irreparable harm to Customer, for which monetary damages may not provide a
sufficient remedy, Customer may seek both monetary damages and equitable relief.
8. Publicity. Neither Party shall disclose, advertise, or publish the detailed terms and conditions of this
Agreement without the prior written consent of the other Party. Any press release or publication regarding
this Agreement or deliverables under it are presumed by the Parties to contain Confidential Information
and is subject to prior review and written approval of the Parties.
9. Warranties.
9.1. Services &Deliverables Warranties. Express warranties for products and services(the Express
Warranties")will be stated in the applicable Addenda for the period stated therein(the"Express Warranty
Period").
9.2. CERTAIN WARRANTY EXCLUSIONS. THE WARRANTIES UNDER THIS AGREEMENT
AND THE ADDENDA DO NOT COVER PROBLEMS CAUSED BY EXTERNAL CAUSES,
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INCLUDING ACCIDENTS,ACTS OF VANDALISM, ABUSE, MISUSE, INADEQUATE
MAINTENANCE,UNKNOWN OR UNFORESEEN ELECTROMAGNETIC DISTURBANCES ON
THE NETWORK, PROBLEMS WITH ELECTRICAL POWER, OR WITH THE QUALITY OF THE
WATER,THE ENERGY OR THE NETWORK, ACTS OF GOD, SERVICE (INCLUDING
INSTALLATION OR DE-INSTALLATION)NOT PERFORMED OR AUTHORIZED BY ITRON.
9.3. DISCLAIMER OF WARRANTIES. WARRANTIES UNDER THIS AGREEMENT,
TOGETHER WITH ALL EXPRESS WARRANTIES CONTAINED IN ANY ADDENDUM,
STATEMENT OF WORK,OR OTHERWISE INCORPORATED IN THIS AGREEMENT,
CONSTITUTE AND EXPRESS THE ENTIRE STATEMENT OF THE PARTIES WITH
RESPECT TO WARRANTIES. THE PARTIES DISCLAIM ALL EXPRESS OR IMPLIED
WARRANTIES, CONDITIONS OR REPRESENTATIONS INCLUDING, WITHOUT
LIMITATION, (I)IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST
INFRINGEMENT AND(III)WARRANTIES ARISING FROM A COURSE OF DEALING,
USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY
CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE
EXPRESS WARRANTY PERIOD.
10. Insurance. During the term of this Agreement, Itron will maintain the following minimum levels
of insurance(i)workers' compensation insurance for Itron employees equal to applicable statutory limits
and an employer's liability policy in an amount not less than $1,000,000.00; (ii)an occurrence form
commercial general liability policy or policies in an amount not less than $1,000,000 per occurrence and
$2,000,000.00 aggregate; (iii)an automobile liability policy or policies in an amount not less than
$1,000,000.00 combined single limit; and(iv)a professional liability policy or policies insuring against
liability for errors and omissions covering professional activities contemplated under this Agreement in an
amount not less than$1,000,000.00. Upon written request, Itron will provide Certificates of Insurance
evidencing the coverage described in this Section.
11. Limitation of Liability.
11.1. NO CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE LIABLE HEREUNDER
FOR CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR
SAVINGS)FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE,
EVEN IF THE PARTY WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE
DAMAGES, EXCEPT THAT THE FOREGOING WILL NOT RESTRICT A PARTY'S ABILITY TO
RECOVER ACTUAL DAMAGES FOR BREACH OF THIS AGREEMENT, INCLUDING THE COSTS
OF OBTAINING REPLACEMENT SERVICES AND DELIVERABLES COMPLYING WITH THE
TERMS OF THIS AGREEMENT.
11.2. TWELVE-MONTH FEE LIMITATION. IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR DAMAGES IN EXCESS OF THE FEES PAID BY CUSTOMER TO SUPPLIER FOR THE
SERVICES OR DELIVERABLES IN THE TWELVE(12)MONTH PERIOD PRIOR TO THE DATE
OF ANY CLAIM.
11.3. Exceptions. The limitations in the preceding subsection do not apply to: (i)damages for which a
Party has an obligation of indemnity under this Agreement; (ii) any grossly negligent, willful or fraudulent
act or omission; or(iii)any breach of provisions related to Confidential Information, privacy or indemnity;
or(iv)breach of the license terms with respect to any software product deliverable.
12. Indemnification against Third Party Claims.
12.1. General Claims. Itron agrees to defend Customer and Customer's successorsand assigns,gn , officers,
directors,employees, representatives, and agents("Customer Indemnitees") from and against any and all
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third-party claims, demands, suits, actions, causes of action, of any kind whatsoever(together a"Claim"),
and Itron will indemnify and hold harmless Customer Indemnitees from and against all damages, losses,
costs and/or expenses(including legal fees and disbursements)awarded against Customer in any such
Claim, or those costs and damages agreed to by Itron in a monetary settlement of such Claim, to the extent
resulting from damages to persons or real or tangible property, bodily injury or death caused by Itron's
negligence or intentional misconduct(including that of its employees, agents, and contractors) arising in
connection with this Agreement.
12.2. Infringement Claims. Itron shall defend the Customer Indemnitees from and against any and all
claims, demands, suits,actions, causes of action, of any kind whatsoever, for damages, losses,costs and/or
expenses(including legal fees and disbursements)by an unaffiliated third party to the extent resulting from
any allegation that any Itron Deliverables and/or Services constitute a direct infringement,violation or
misappropriation of any such third party's Intellectual Property rights. The foregoing does not apply to
products that are not manufactured by Itron or to software licensed by third parties.
12.3. Conditions to Infringement Claim Defense. Itron's infringement defense obligations under
Section 12.2 are conditioned on Customer's agreement that if the applicable product or service becomes,
or in Itron's opinion is likely to become,the subject of such a claim, Itron will have the right,at Itron's
sole option and expense, either to procure the right for Customer to continue using the affected product or
service or to replace or modify the same so that it becomes non-infringing. Such replacements or
modifications will be functionally equivalent to the replaced product or service. If the foregoing
alternatives are not available on terms that are commercially reasonable in Itron's sole judgment, Itron
shall have the right to require Customer to cease using the affected product or service in which case Itron
will refund to Customer the depreciated value of the affected product or the unused portion of the service,
as the case may be.
12.4. Exclusions to Infringement Claim Defense. Itron shall have no obligation under this Agreement to
the extent any claim of infringement or misappropriation results from: (i)use of a product or service, other
than as permitted under this Agreement or as intended by Itron, if the infringement would not have
occurred but for such use; (ii)use of any product or service in combination with any other product,
equipment, software or data, if the infringement would not have occurred but for such combination; (iii)
any use of any release of a software or any firmware other than the most current release made available to
Customer, (iv)any claim based on Customer's use of a product after Itron has informed Customer of
modifications or changes to the product required to avoid such claims and offered to implement those
modification or changes, if such claim would have been avoided or mitigated by the implementation of
Itron's suggestions, (v)any modification to a product made by a person other than Itron or an authorized
representative of Itron, or(vi) compliance by Itron with specifications or instructions supplied by
Customer. Itron shall not be liable hereunder for enhanced or punitive damages that could have been
avoided or reduced by actions within the control of Customer.
12.5. Conditions to Defense. As a condition to Itron's defense obligations under this Agreement,
Customer will provide Itron with prompt written notice of the claim, permit Itron to control the defense,
settlement, adjustment or compromise of the claim and provide Itron with reasonable assistance in
connection with such defense; however, Itron shall not consent to any judgment or settlement of the
foregoing,that creates an obligation on any Customer Indemnitee without first obtaining such
indemnitee's prior written consent. Customer may employ counsel at its own expense to assist it with
respect to any such claim.
12.6. THIRD PARTY CLAIM DISCLAIMER. THIS SECTION CONSTITUTES ITRON'S SOLE
AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT
AGAINST CUSTOMER.
13. Intellectual Property.
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13.1. Definition. "Intellectual Property"means intellectual and industrial property rights, and moral
rights or similar or analogous proprietary rights, pertaining to a particular invention, work of authorship,
symbol or other mark or designation indicative of source or quality, or other particular item of tangible or
intangible property, arising under statutory or common law or by contract, in the United States or another
country that recognizes such rights,whether or not perfected,now existing or hereafter filed, issued, or
acquired, including: (i)patent rights associated with an invention and processes(including business
processes), methods and apparatuses entailed by such invention(including, as applicable,the rights to
make, use, sell,offer to sell, import, or have made, and the rights to file and prosecute patent applications
and provisional patent applications); (ii)rights associated with works of authorship, including copyrights
and mask work rights(including the rights to copy, adapt, distribute, display, perform, and create
derivative works); (iii)rights relating to the protection of trade secrets and confidential information
(including the rights to use and disclose); (iv)trademarks, service marks, trade dress,trade names, and
design patent rights(including the right to goodwill appertaining thereto); (v)moral rights; and(vi)other
rights analogous, similar, or comparable to those described by the foregoing clauses (i)through(v), and
other proprietary rights relating to intangible property(including licensing rights and shop rights).
13.2. Reservation of Intellectual Property Rights. Itron reserves all rights,title and interest in and to all
of its Intellectual Property. Customer reserves all rights,title and interest in and to all of its Intellectual
Property.
13.3. Suggestions. Itron shall have a royalty-free, worldwide, irrevocable,perpetual license to use and
incorporate into its products and services any suggestions, enhancement requests,recommendations or
other feedback provided by Customer.
14. Change Requests & Change Orders.
14.1. Request. Customer may at any time, and from time to time,propose changes to services or services
deliverables or request that Itron perform additional services for Customer(each a"Change Request").
Within a reasonable period after receiving a written Change Request from Customer, Itron will prepare
and submit a written proposal in the form of a statement of work to Customer that: (i)if applicable,
assesses the expected impact of the Change Request on any services or services deliverables being
provided at the time of the request; (ii)defines and describes how Itron would fulfill or satisfy the Change
Request, and describes any additional services or services deliverables to be provided by Itron in
reasonable detail; (iii) sets forth pricing, specifications,implementation plans and time schedules, with
appropriate milestone and completion dates, anticipated by Itron in connection with fulfilling the Change
Request; (iv)contains proposed completion and acceptance criteria; and(v) sets forth any other
information required by this Agreement and any Technology& Services Addendum.
14.2. Response. If Itron timely submits a response to the Change Request,the Parties will attempt in
good faith to negotiate a mutually acceptable resolution. Mutually agreed upon Change Requests will take
the form of a written order(each a"Change Order"). Following the issuance of any Change Request and
during any negotiation,Itron will continue to provide the services and services deliverables, unless
otherwise agreed to by Itron and Customer in writing.
14.3. Failure to Respond to Change Request. If Itron fails to respond to Customer's Change Request
within five (5)business days,the Change Request will be deemed to be rejected.
14.4. Authorized Approvals. No Change Order will be binding upon Customer or Itron unless executed
and delivered by an authorized signatory of both parties. All Change Orders and all statements of work
under a Change Order will be governed by the terms and conditions of this Agreement and the applicable
Technology& Services Addendum.
15. DISPUTE RESOLUTION
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15.1. Dispute Resolution Procedure. The Parties will resolve any dispute between the Parties regarding
the interpretation of this Agreement or Itron's performance using the procedures in this Section.
15.1.1. Either Party may give the other Party written notice of any dispute not resolved in the
normal course of business. Upon delivery of the notice, each of the Parties will appoint a
designated representative who does not devote substantially all of his or her time to performance
under this Master Solution Agreement and who, in the case of Customer, will be a director(or more
senior corporate officer),and in the case of Itron, a director(or more senior corporate officer),to
meet for the purpose of resolving the dispute.
15.1.2. The representatives will discuss the problem and negotiate in good faith to resolve the
dispute promptly and without the necessity of any formal proceeding. If either Party intends to have
an attorney attend a meeting, it will notify the other Party at least two(2)business days before the
meeting to enable the other Party to also be accompanied by an attorney. All negotiations pursuant
to this Section are confidential and will be treated as compromise and'settlement negotiations for
purposes of evidentiary rules.
15.1.3. If the disputed matter has not been resolved by the designated representatives within ten
(10)business days after delivery of the written notice by one Party to the other, or such longer
period as agreed to in writing by the Parties,each Party will have the right to commence any legal
proceeding as permitted by law.
15.2. Agreements in writing. No agreement achieved under this dispute resolution process will be
binding on either Party unless set forth in a writing executed by both Parties by duly authorized
signatories.
15.3. No Termination or Suspension of Services. During the pendency of any dispute, Itron will not
interrupt or delay the provision of Services, disable any Deliverable in whole or in part, or perform any
other action that prevents, slows down,or reduces in any way the provision of Services or Customer's
ability to conduct its business, unless Customer agrees in writing or terminates this Master Solution
Agreement.
15.4. Injunctive relief. Neither Party will be obligated to follow the procedures set forth in this Section
when seeking injunctive relief.
16. Miscellaneous.
16.1. Entire Agreement. This Agreement and any attachments hereto constitute the entire agreement
between the Parties with respect to the subject matter hereof and supersede all previous agreements
pertaining to such subject matter. All prior agreements, representations,warranties, statements,
negotiations,understandings, and undertakings are superseded hereby and Customer represents and
acknowledges that it has not relied on any representation or warranty other than those explicitly set forth in
this Agreement in connection with its execution of this Agreement. Neither Party shall be bound by terms
and conditions imprinted on or embedded in purchase orders, order acknowledgments, statements of work
not expressly made a part hereof or other communications between the Parties.
16.2. Waivers. No delay or failure to require performance of any provision of this Agreement shall
constitute a waiver of that provision. No waiver granted under this Agreement as to any one provision
herein shall constitute a subsequent waiver of such provision or of any other provision herein, nor shall it
constitute the waiver of any performance other than the actual performance specifically waived.
16.3. No Assignment. This Agreement is personal to each Party, and none of the rights of a Party
hereunder shall be sold,transferred, assigned or sublicensed by a Party; provided,however,that upon
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written notice to Customer,Itron shall have the right to assign, by contract or by operation of law, any or
all of its rights and obligations under this Agreement to a Itron Affiliate without any requirement that Itron
seek or obtain the approval of Customer. "Itron Affiliate"means an entity controlled by or under common
control with Itron.
16.4. Captions; Section Numbers. Article, section and paragraph numbers and captions are provided for
convenience of reference and do not constitute a part of this Agreement. Any references to a particular
Section of this Agreement will be deemed to include reference to any and all subsections thereof.
16.5. Neither Party Deemed Drafter. Despite the possibility that one Party or its representatives may
have prepared the initial draft of this Agreement or any provision or played a greater role in the
preparation of subsequent drafts,the parties agree that neither of them will be deemed the drafter of this
Agreement and that, in construing this Agreement, no provision hereof will be construed in favor of one
Party on the ground that such provision was drafted by the other.
16.6. Expenses. Each Party will be responsible for, and will pay, all expenses paid or incurred by it in
connection with the planning, negotiation, and consummation of this Agreement.
16.7. Anti-Corruption. Customer has not received or been offered any illegal or improper bribe,
kickback, payment, gift, or thing of value from an Itron employee or agent in connection with this
Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate
the above restriction. If Customer learns of any violation of the above restriction, it will use reasonable
efforts to promptly notify Itron's Law Department via the contact information in the notices section.
16.8. Relationship of the Parties. The Parties are independent contractors for all purposes and at all
times. This Agreement does not create a partnership, franchise,joint venture, agency, fiduciary, or
employment relationship between the Parties. Itron has the responsibility for, and control over,the
methods and details of performing services and providing products under this Agreement. Itron will
provide all tools, materials,training, hiring, supervision,work policies and procedures,and be responsible
for the compensation, discipline and termination of Itron personnel. Neither Party has any authority to act
on behalf of, or to bind the other to any obligation.
16.9. Compliance with Law. Itron and Customer will at all times perform their respective obligations
under this Agreement in compliance in all material respects with all applicable foreign, domestic, state,
and local laws and regulations of all applicable foreign and domestic jurisdictions,and in such a manner as
not to cause the other to be in material violation of any applicable laws or regulations including any
applicable requirements of any foreign, domestic, state, or local authority regulating health, safety,
employment,the environment, consumer protection, security, exportation, information services, or
telecommunications.
16.10. Governing Law.This Agreement and performance hereunder will be governed by and construed
in accordance with the laws of the State of Minnesota without reference to their conflicts of law
principles or the United Nations Convention on Contracts for the Sale of Goods.
16.11.Jury Trial Waiver.
16.11.1. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY COURT
ACTION ARISING AMONG THE PARTIES UNDER THIS AGREEMENT OR
OTHERWISE RELATED TO THIS AGREEMENT,WHETHER MADE BY CLAIM,
COUNTERCLAIM,THIRD PARTY CLAIM OR OTHERWISE.
16.11.2. If the jury waiver is held to be unenforceable,the Parties agree to binding arbitration for
any dispute arising out of this Agreement or any claim arising under any federal, state or local
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statutes, laws, or regulations. The arbitration will be conducted in accordance with the arbitration
rules promulgated under the CPR Institute for Dispute Resolution's ("CPR")Rules for Non-
Administered Arbitration of Business Disputes then prevailing. To the extent that the provisions of
this Agreement and the prevailing rules of CPR conflict,the provisions of this Agreement will
govern. The arbitrator(s)will be required to furnish, promptly upon conclusion of the arbitration,a
written decision, setting out the reasons for the decision. The arbitration decision will be final and
binding on the parties,and the decision may be enforced by either Party in any court of competent
jurisdiction. Each Party will bear its own expenses and an equal share of the expenses of the third
arbitrator and the fees, if any, of the CPR.
16.11.3. The Parties agreement to waive their right to a jury trial will be binding on their respective
successors and assignees.
16.12. Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals
hereunder shall be in writing and shall be deemed to have been given upon: (i)personal delivery, (ii)the
second business day after mailing, (iii)the second business day after sending by overnight delivery, (iv)
the second business day after sending by confirmed facsimile, or(iv), except for legal notices,the first
business day after sending by email. All legal notices shall be clearly identified as such.
16.13. Severability. If any provision of this Agreement or its applications to particular circumstances is
determined by a court of competent jurisdiction to be invalid or unenforceable,that provision(or its
application to those circumstances)will be deemed stricken and the remainder of this Agreement(and the
application of that provision to other circumstances)will continue in full force and effect insofar as it
remains a workable instrument to accomplish the intent and purposes of the parties; the parties will replace
the severed provision with the provision that will come closest to reflecting the intention of the parties
underlying the severed provision but that will be valid, legal, and enforceable.
16.14. Force Majeure. Except for the obligation to pay monies due and owing, neither Party shall be
liable for any delay or failure in performance due to events outside the defaulting Party's reasonable
control, including without limitation acts of God, earthquake, labor disputes, industry wide shortages of
supplies, actions of governmental entities,riots, war, terrorism, fire, epidemics, or delays of common
carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting
Party shall be extended for a period equal to the period during which such event prevented such Party's
performance.
16.15. No Third Party Rights. This Agreement is entered into only for the benefit of Customer and
Itron and no other person or entity shall have the right to enforce any of its terms.
16.16. Authorization. Each Party represents and warrants that the signing, delivery and performance of
this Agreement has been properly authorized.
16.17. Counterparts. This Agreement may be executed by facsimile or scan and in counterparts,which
taken together shall form one legal instrument.
[Signature Page Follows]
127
SIGNATURE PAGE
TO
MASTER SALES AGREEMENT
TERMS AND CONDITIONS
AGREED:
Itron,Inc. Customer
Signature Signature
Printed Name Printed Name
Title Title
Date Date
12R
TRANSACTION SUMMARY
TO
MASTER SALES AGREEMENT
Technology& Services Addendum to Master Sales Agreement
1. Software License Addendum ❑x
2. Maintenance& Support Services Addendum ❑x
3. Installation/Implementation Services Addendum ❑x
Pricing Summary (Attached)
BMR#10320-16 Ver 3 Apr dated April 26.2016
Identification of Licensed Software
Application(s)Name
See BMR#10320-16 Ver 3 Apr dated April 26, 2016
License Term
❑x Perpetual
❑ Fixed Term(Click here to enter text. Years)
(❑ Check if fixed term license requires purchase of software maintenance and support services)
Usage
❑x Tier Limitation, if applicable(See BMR#10320-16 Ver 3 Apr dated April 26,2016)
Billing Information (if applicable)
Ship Software to Contact Name:
Address:
City/State/Zip:
Phone Number:
email Address:
Billing Contact Contact Name:
Information Address:
City / State / Zip:
Phone Number: _
Fax Number:
Renewal Notice Contact Name:
Contact Information Address:
City/State/Zip:
Phone Number:
Fax Number:
Purchase Order Number:
12g
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TECHNOLOGY& SERVICES ADDENDUM
—Software License—
1. The Licensed Software. The Itron software licensed under this Addendum(the"Licensed
Software" is identified in the Transaction Summary and in the pricing summary.
2. Software Maintenance & Support. Note: Customers licensing Licensed Software in connection
with Cloud Infrastructure service are required to purchase software Maintenance & Support Services for
term of the Cloud Infrastructure service.
3. License Grant. Itron hereby grats to Customer a not;exclusive,non-transferable, non-assiable,
non-sublicensable, revocable right-a license—within the errrtory andtor the Software License-1erm,
subject to payment of license fees and compliance with the terms and conditions of this Addendum and the
Agreement—to: (i)use, make, execute,display, and perform the Licensed Software in object code form for
Customer's own internal business purposes and only in connection with the number of specified endpoints.
The "Territory" shall be the United States of America — or Canada, if Customer is a Canadian company
that will be operating the Licensed Software in Canada. The Software License Term is identified in the
Transaction Summary.
4. Third-Party Software. All software developed by a third-party and sublicensed by Itron is subject
to the licensing terms of the third-party developer, a copy of which terms shall be given to Customer.
Such third-party software does not include software incorporated or embedded into hardware and
software manufactured or developed by Itron.
5. Restrictions. In addition to those restrictions,terms, and conditions set forth in the Agreement—
and as a condition to the license grant under Section 3, above—Customer shall not(a)modify or create
any derivative works from the Licensed Software or the documentation provided with the Licensed
Software("Documentation"), (b) include or combine the Licensed Software with any software or with
any equipment or hardware other than as authorized by Itron, (c)use the Licensed Software to provide
processing services to third-parties or on a service bureau basis,(d)reverse assemble, decompile,reverse
engineer the Licensed Software or otherwise attempt to derive its source code, (e)transfer any copy of the
Licensed Software from the authorized system to any other computer hardware or system, except in case
of malfunctioning or defective computer hardware or system—and then only temporarily and with the
consent of Itron; or(viii)export the Licensed Software or any copy or direct product thereof out of the
United States except in compliance with applicable export laws and regulations. Customer may only
make copies of Documentation as reasonably necessary for the use contemplated under the Agreement;
provided, however,that Customer may not copy the Licensed Software other than to make one machine
readable copy for disaster recovery or archival purposes. Installation of the Licensed Software shall be
limited to one production environment and one test environment. The Licensed Software and
Documentation is the Confidential Information of Itron. Customer recognizes and agrees that any breach
of the preceding restrictions by Customer shall constitute a material breach of this Addendum by
Customer, and, at the option of Itron, shall result in revocation and immediate termination of all rights and
licenses granted hereunder. Customer further recognizes and agrees that nothing in this Section shall be
construed as prohibiting Itron from pursuing any and all remedies in the event of such breach or violation,
and Itron hereby expressly reserves such rights and remedies.
6. Reservation of Intellectual Property Rights by Itron. Itron(and third party developer in the
case of sublicensed software)retains all right,title and interest,and all ownership, in and to the Licensed
Software and Documentation, including but not limited to all patent, copyright,trade secret, proprietary
and other intellectual property rights in the Licensed Software and Documentation and in any modify-
cations and derivative works. Itron(and third party developer in the case of sublicensed software)
reserves the sole right to modify and update the Licensed Software. Customer will not take any action that
131)
might impair or challenge in any way any right, title or interest of Itron (or the applicable third party
developers in the case of sublicensed software) in any such intellectual property rights. Customer must
not alter or remove trade names,trademarks, services marks, or copyright notices and any other
proprietary notices or trademarks on any Licensed Software or Documentation.
7. Software Delivery. Licensed Software will be delivered on the date and in the manner agreed to
by the Parties.
8. Limited Warranties. The following warranties are the sole and exclusive warranties offered by
Itron in connection with the Licensed Software.
8.1. Itron Software. Itron represents and warrants that for a period of ninety(90)days from the date of
delivery to Customer,the Itron Software will operate substantially in conformance with the applicable
Specifications. Customer's sole remedy for a breach of this warranty—if Itron has failed to cure the
breach of warranty within in a reasonable period—will be the refund of license fees for the Licensed
Software. Itron Software that is repaired or replaced pursuant to this Section will be warranted for the
remainder of the original warranty period or thirty(30)days,whichever is longer. Customer's license to
Itron Software for which it has received a refund hereunder shall terminate upon its receipt of a refund.
The foregoing warranty does not cover third party software.
8.2. Third Party Software. ITRON IS NOT THE OWNER OF THE THIRD PARTY SOFTWARE
AND MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER,DIRECTLY OR
INDIRECTLY,EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, AND FITNESS
FOR USE, MERCHANTABILITY, CONDITION, QUALITY, PERFORMANCE OR NON-
INFRINGEMENT OF THE THIRD PARTY SOFTWARE. WITH RESPECT TO ITRON, CUSTOMER
IS PROVIDED THIRD PARTY EQUIPMENT"AS IS." THIRD PARTY SOFTWARE SHALL BE
SUBJECT TO ANY WARRANTIES PROVIDED BY THE THIRD PARTY SOFTWARE LICENSOR.
MODIFICATIONS MAY VOID OR OTHERWISE LIMIT ANY WARRANTY APPLICABLE TO
THIRD PARTY SOFTWARE.
Itron agrees to act as a liaison with the third party software licensors in regard to the third party software
warranties, if any, and will use its commercially reasonable efforts to assist Customer in enforcing those
warranties.
9. Exclusions from Liability. Itron shall have no obligation to Customer to the extent any Licensed
Software is adversely affected by: (i)use of the Licensed Software in combination with any equipment,
computer hardware and peripheral devices, operating system software, device drivers,third party software
programs, computer graphic elements, and the like that are not authorized by Itron; (ii)any modification,
fix,update or upgrade to the Licensed Software that is made other than by Itron; (iii)the use of a version
of Licensed Software that is not supported by Itron; (iv)Customer's failure to implement a fix, update, or
upgrade to Licensed Software provided by Itron; (v)the maintenance or support of Licensed Software
other than by Itron; (vi)viruses introduced through no fault of Itron; or(vii) Customer's failure to follow
installation, set up, and configuration instructions as described in the Documentation.
10. Effect of Termination for Cause. Upon termination of this Addendum for cause, Customer shall
immediately discontinue use of the Licensed Software and Documentation and will destroy or return to
Itron any and all copies of the Licensed Software and Documentation and certify to Itron in writing within
fourteen(14)days after such termination that Customer has destroyed or has returned to Itron the
Licensed Software and Documentation. This requirement applies to copies in all forms, partial and
complete, in all types of media and computer memory, and whether or not modified or merged into other
materials. Termination of this Addendum for cause will not restrict either Party from pursuing any other
remedies available to it, including injunctive relief, nor will such termination relieve Customer of its
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obligation to pay all fees that accrued prior to such termination. Upon termination of this Addendum for
cause, Itron will have no further obligations to Customer in any respect whatsoever with respect to the
Licensed Software. For avoidance of doubt—notwithstanding the foregoing, upon termination of this
Addendum for cause no license, express or implied, is granted to Customer to any Itron intellectual
property rights in the Licensed Software and Documentation.
11. Open Source. In the event that Itron identifies open source components within the Itron Software
and provides Customer with the applicable license(s),Customer is required to accept and will comply
with all such licenses.
12. License Compliance Verification.
12.1. Records. Customer agrees to create, retain, and provide to Itron and its auditors accurate written
records, system tool outputs, and other system information sufficient to provide auditable verification that
Customer's use of all Licensed Software is in compliance with the license terms and conditions of this
Addendum and the Agreement, including, without limitation, all of Itron's applicable licensing and
pricing terms. Customer is responsible for 1)ensuring that it does not exceed its authorized use, and 2)
remaining in compliance with the license terms and conditions of this Addendum. Customer, at Itron's
request,will provide records and other information to demonstrate compliance with license terms and
conditions of this Addendum and the Agreement.
12.2. Verification Process. Upon reasonable notice, Itron may verify Customer's compliance with the
license terms and conditions of this Addendum at all sites and for all environments in which Customer
uses(for any purpose)Licensed Software. Such verification will be conducted in a manner that
minimizes disruption to Customer's business and may be conducted on Customer's premises, during
normal business hours. Itron may use an independent auditor to assist with such verification, provided
Itron has a written confidentiality agreement in place with such auditor.
12.3. Resolution. Itron will notify Customer in writing if any such verification indicates that Customer
has used any Licensed Deliverable in excess of its authorized use or is otherwise not in compliance with
the licensing terms and conditions of this Addendum or the Solution Document. Customer agrees to
promptly pay directly to Itron the charges that Itron specifies in an invoice for 1)any such excess use,2)
support for such excess use for the lesser of the duration of such excess use or two years, and 3)any
additional charges and other liabilities determined as a result of such verification.
12.4. No Restriction on Seeking Injunctive Relief. Nothing in this Section 12 in any way limits or
restricts Itron's right to seek injunctive relief for Customer's non-compliance with licensing terms and
conditions of this Software Licensed Agreement Document.
13. Invoices. Itron will invoice Customer one hundred percent(100%) of the license fees for the
Licensed Software upon delivery to Customer in the manner agreed upon.
14. Surviving Provisions. In addition to the Sections identified in the survival provisions of the
Agreement,the following sections of this Addendum will survive expiration and termination of this
Addendum and the Agreement: 6("Reservation of Intellectual Property Rights by Itron"), 9 ("Exclusions
from Liability"), 10("Effect of Termination"), 12("License Compliance Verification").
[End of Addendum]
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TECHNOLOGY& SERVICES ADDENDUM
—Maintenance&Support Services (Hardware& Software)—
1. Additional Definitions. The following defined terms are in addition to those defined in the
Agreement:
"Annual Adjustment"means Itron's standard annual price increase.
"Annual Fee"means the annual fee identified in the pricing summary for each category of Covered
Product plus the Annual Adjustment, if any. The Annual Fee for any partial Maintenance Year(i.e., for
Covered Products with a Maintenance Commencement Date that falls after the beginning of the
Maintenance Year) shall be prorated based on the applicable number of months Customer is to receive
Services under this Addendum during such Maintenance Year.
"Contact Documents" means the"Itron Support Services Contacts" document, which can be obtained by
calling(877)487-6602, including for example,the Itron Equipment Repair Table and Working
Effectively with Itron Client Services documents.
"Covered Product"means Covered Software and Covered Equipment.
"Covered Software"means the software identified in the pricing summary to this Addendum.
"Covered Equipment"means the equipment identified in the pricing summary to this Addendum which
is Itron Equipment. (Itron Equipment is distinguished from equipment manufactured by a third-party that
Customer may purchase through Itron under an Equipment Purchase Agreement Document or other
commercial sales agreement.
"End of Support" means a commercial decision by Itron to discontinue maintenance and support
services for specific Covered Products or to discontinue offering a particular Covered Product to Itron
customers in general,along with that Covered Product's associated maintenance and support.
"Error"means a failure of the Covered Software or Covered Software platform to substantially comply
with the applicable Specifications.
"Fix"means a correction of an Error, including a work-around, in order for Covered Software to function
in accordance with the applicable Specifications.
"Improvement"means an update, modification, enhancement, extension,new version(regardless of
name or number), new module, or other change to Covered Software that is developed or otherwise
provided by Itron.
"M&S Commencement Date"means the date upon and after which a Covered Product is entitled to
receive Services under this Addendum in accordance with the terms of this Addendum, which—unless
otherwise stated in the pricing summary—is (a)for Covered Software that is an Itron product,the first
day of the month following delivery by agreed-upon method of the Covered Software(e.g., electronic or
physical medium), except that the Maintenance Commencement Date for MV-RS Software is the
warranty expiration date; and(2)for Covered Equipment that is Itron Equipment, the warranty expiration
date.
"M&S Services Option"means the maintenance and support services option for Covered Equipment or
Covered Software, including Service Levels,as set forth in Attachment B-1.
"Maintenance Year"means, for each Covered Product, a period of one (1)year beginning on the
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•
Effective Date,any anniversary thereof, or agreed-upon coverage start date.
"Mandatory Revision"means a software revision that Customer is required to accept in order to correct
or address any one of the following issues: a material Error or a material security breach; or third party
infringement claim.
"Operating Condition" means that the Covered Equipment performs in accordance with the applicable
Specifications.
"Principal Services Contacts" means the Customer personnel that Customer is required to designate to
serve as Customer's principal relationship contacts for all Services under this Addendum.
"Loaned Mobile/Handheld Equipment" means Mobile Collector and/or Handheld units loaned by Itron
to Customer, under the terms of this Addendum while Services are being performed on Customer's
Mobile Collector and/or Handheld.
"Service Levels"means,with respect to this Addendum,the response time, effort level, and escalation
path procedures and guidelines described in Attachment 1 to this Addendum.
"Software Release"means a collection of Fixes or Improvements made available to Itron customers
(either via physical media or electronic download access).
"Service Request"means a request initiated by Customer for a technical support service within the scope
of the applicable maintenance and support Services option purchased by Customer.
"Technical Support Services" means Itron technical support services provided by technical
representatives by telephone, email or other remote means to assist Customer's Principal Service Contacts
with questions related to the operation of the Covered Products.
2. Effect of Termination.
2.1. Effect of Termination of Agreement. Except as otherwise provided in Section 2.1.2 below, Itron
shall not be obligated to provide any Services under this Addendum upon termination of this Addendum.
2.1.1. If either Party terminates the Agreement Customer shall not be entitled to a prorated refund
of the applicable Fee.
2.1.2. Unless Itron terminates the Agreement for breach or default by Customer, Itron will
continue to provide Services under this Addendum that were purchased by Customer prior to the
termination date—and the terms and conditions of this Addendum will continue to govern such
Services.
2.2. End of Support. Itron may discontinue Services for any Covered Product, effective as of the end
of the current Maintenance Year,by giving Customer written notice of such discontinuance no less than
ninety(90)days prior to the end of such Maintenance Year. If the End of Support date is scheduled
within a subsequent Maintenance Year, Fees for that subsequent term will be pro-rated through the
appropriate End of Support date. At Customer's request, Itron may elect to provide custom support for
products for which Maintenance Services have been discontinued at Itron's then-current rates. Unless
otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation
to provide Services under this Addendum with respect to Covered Products for which Itron has
discontinued Services pursuant to this Section.
3. Principal Services Contacts.
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3.1. Designation by Customer. Customer shall designate no more than two(2)Principal Services
Contacts for each Covered Product, as identified in the Contract Documents,to serve as administrative
liaisons for all matters pertaining to the Services provided under this Addendum for such Covered
Product line, and shall provide their contact information to Itron's customer account representative.
Principal Services Contacts shall report problems with Covered Products (each such report,a"Service
Request")as soon as practicable for entry into Itron's support tracking system. Although it is Customer's
sole right to choose its Principal Services Contacts, Customer and Itron acknowledge that each Principal
Services Contact should have the appropriate technical skills and training for the position. If Customer
replaces a Principal Services Contact, Customer will provide updated contact information to Itron, and the
new Principal Services Contact will undergo the same initial training as described in Section 3.2.
3.2. Training of Principal Services Contacts. Before a Principal Services Contact interfaces with
Itron,the Principal Services Contact must attend training sessions offered by Itron, an Itron approved
trainer, or Customer's training program approved by Itron to ensure that the Principal Services Contact is
(a)knowledgeable about the operation of the Covered Products, and(b) qualified to perform problem
determination and remedial functions with respect to the Covered Products. Such training sessions will
be at Itron's then-current rates. Customer will be solely responsible for all travel and other expenses
incurred in connection with each Principal Services Contact's attending the training sessions. The
Principal Services Contact should have the skills and capabilities to train other Customer personnel on
Covered Products("train-the-trainer").
3.3. Additional Training. If Itron notifies Customer that additional training of a Principal Services
Contact is necessary, Customer will promptly ensure that the Principal Services Contact receive such
training.
4. Technical Support Services & Service Requests.
4.1. Support Services. Itron will provide Technical Support Services during its then-current normal
business hours. Technical Support Services include troubleshooting, problem diagnosis, release or
system management, and recommendations for fully utilizing the Covered Products. Customer
acknowledges and agrees that Technical Support Services are not intended as a substitute for training of
Customer personnel,field support, or Itron professional services—all of which can be purchased
separately. Nor will Customer use Technical Support Services in lieu of having qualified and trained
support personnel of its own. Itron's current Technical Support Services contact and support hours are
described in the Contacts Document.
4.2. Service Request Process. Customer shall submit Service Requests in the manner required by the
Contact Documents and Service Levels.
4.3. Field Support. Upon mutual agreement of the Parties, Itron will dispatch support personnel to
Customer's location to provide technical support. Such support will be billed at Itron's then-current
hourly rates (with reasonable travel and living expenses invoiced at Itron's cost without markup), unless
the cause of the reported problem is found to be the fault of Itron.
5. Software Maintenance.
5.1. Fixes. Itron shall make commercially reasonable efforts to provide a Fix in accordance with the
Service Levels. Itron's obligations with respect to Service Levels are contingent upon Customer(i)
devoting the same level of effort to resolving the Error as is required of Itron,(ii)responding to requests
made by Itron within the applicable Response Time, and(iii) assigning its most qualified personnel to
help Itron address the Error.
1:15
5.2. Documentation. Itron will make an electronic copy of the Documentation available to Customer at
no additional charge via physical media or download access. Itron will maintain a copy of its most recent
supported version of the executable Covered Software to be made available to Customer as necessary in
the event of corrupted or inoperative Covered Software.
5.3. Improvements. Itron shall provide Improvements, if any, at its then-current price for such
Improvements(or at no charge if such Improvements are made available to Itron customers generally at
no charge).
5.4. Software Releases.
5.4.1 Release Numbering Convention. Fixes and/or Improvements are made available to
customers through periodic Software Releases. For informational purposes, Itron's current typical
practice (which may be changed at any time in Itron's discretion) is to provide Software Releases using
the numbering convention "XX.YY.ZZ."
• The "XX" in Itron's numbering convention refers to a"System Release," which is a new
version of the item of Covered Software. A System Release may include Fixes,Improvements
or interfaces to new functional modules or platforms not previously supported by Itron.
• The "YY" in Itron's numbering convention refers to a"Service Pack Release,"which is an
update to a System Release. Service Pack Releases may include Fixes or Improvements and
are provided to Itron customers generally on a periodic basis.
• The "ZZ" in Itron's numbering convention refers to a "Hot Fix Release," which is an un-
scheduled release provided to one or more customers as a short-term, temporary fix to a
Severity Level 1 Error. While not utilized by all Itron software product lines, Hot Fix Releases
are not made available to Itron customers generally but may be included in the next scheduled
Service Pack for general release.
5.4.2 Support for Releases of Itron Enterprise Edition and Openway Software. This Section
5.4.2 applies only to Covered Software that are Itron Enterprise Edition or OpenWay software products.
Services for Itron Enterprise Edition and OpenWay software products under this Addendum shall be
limited to the most recent System Release and the prior System Release(and the most current Service
Pack Release associated with such System Release). Customer will test and install Service Pack Releases
associated with the System Release in use by Customer within twelve (12)months of such Service Pack
Releases being made available to Customer. Customer will fully test and upgrade to the latest System
Release at least every twenty-four(24)to thirty-six(36)months.
5.4.2.1 Itron may elect to provide Services under this Addendum for an unsupported Software
Release of Covered Software at its then-current rates for customer support.
5.4.3 Support for Releases of all Other Covered Software. This Section 5.4.3 applies to all
Covered Software other than Itron Enterprise Edition and OpenWay Software products. Services under
this Addendum for all Covered Software other than Itron Enterprise Edition and OpenWay software
products shall be limited to the most recent System Release and the two prior Service Pack Releases.
Customer will test and install System Releases and Service Pack Releases within twelve(12)months of
such Releases being made available to Customer. Itron may elect to provide Services under this
Addendum for an unsupported Software Release of Covered Software at its then-current rates for
customer support.
13F
5.4.4 Installation Services for Software Releases. This Section 5.4.4 applies to all Covered
Software. Installation services under this Addendum will include limited,remote phone support, for all
Covered Software,on Itron certified server configurations, are applicable for one production server and
one non-production server owned (test,training, or back-up—for example)/operated by the Customer.
At Customer's request,Itron may provide Software Release installation services for install of System
Releases or Service Packs on additional production or non-production servers at Itron's then-current
hourly rates.
5.4.4.1 Itron may elect to provide Services under this Addendum for installation of System Release
of Covered Software on uncertified server configurations at its then-current rates for customer
support.
5.5. Mandatory Revision. In the event that Itron, in its sole reasonable discretion, determines that any
Covered Software is, or may(as applicable)be: (i) subject to a material Error; (ii)the subject of a material
security breach; or, (iii)be subject to a third party infringement claim or suit of any kind, Itron may issue
a Mandatory Revision.
5.6. DISCLAIMER OF LIABILITY. ITRON DISCLAIMS ALL LIABILITY AND OBLIGATIONS
THAT ARISE DUE TO, OR ARE RESULT OF, CUSTOMER'S FAILURE TO TEST AND INSTALL
A MANDATORY REVISION IN A TIMELY FASHION.
5.7. Interoperability. Itron makes no representation or warranty regarding the ability of the Covered
Software to interoperate with third party hardware or software other than software or hardware identified
as compatible with the Covered Software in Itron's Documentation for the applicable Covered Software.
5.8. Restoring Software to Maintenance Services. If Customer declines Services under this
Addendum after the end of warranty or discontinues Services under this Addendum for any Covered
Software,and thereafter wishes to resume such Services for the most recent Software Release of that
Covered Software,Customer shall,prior to receiving Services, notify Itron in writing of its request for
Services and pay Itron's then-current re-initiation fee.
5.9. Exclusions. Itron shall have no obligation to Customer for any Services under this Addendum to
the extent any Covered Software is adversely affected by: (i) use of the Covered Software in combination
with other software,equipment or communications networks that are not referenced in the
Documentation;(ii)any modification to the software, operating environment, system installation,
operating instructions, scripts, or database configuration that is made other than by Itron,; (iii)the use of a
version of the Covered Software that is not supported by Itron; (iv) Customer's failure to implement a Fix
provided by Itron; (v)the maintenance and/or support of the Covered Software other than by Itron; (vi)
viruses introduced through no fault of Itron; (vii)use of the Covered Software other than as authorized by
Itron and the applicable license, including Covered Software operated on Covered Equipment that has
been serviced or repaired by a third party that is not Itron certified; or(viii) Customer's failure to perform
Customer responsibilities in accordance with this Addendum.
5.10. Customer Software Responsibilities.
5.10.1 Support Tools. Customer will support remote access to the Covered Software by Itron
Personnel assigned to provide Services under this Addendum for purposes of remote diagnosis and
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troubleshooting of the Covered Software.
5.10.2 System Configuration and Administration. Customer will ensure that its equipment,
system peripherals, operating system, and data communications environment associated with the Covered
Software is configured, operated, and maintained in accordance with the Documentation and any
applicable third party documentation. These administrative activities shall include but not be limited to:
checking audit logs, clearing discovered exceptions, and performing daily, weekly, and monthly
operational tasks and system responsibilities. Customer is responsible for any change they make to the
software system, operating system, database or network configuration or change to installation
procedures, scripts, and provisions that may affect the usability or operation of the Software or Data.
Customer will consult with Itron prior to making changes that may affect the operation of the Covered
Software.
5.10.3 Network Administration. Customer will monitor and maintain,repair, replace and
upgrade its local, and wide area network components(if any)—including network servers, network
clients, network hubs,routers,modems, and other software components necessary for efficient and
reliable network operations associated with the Covered Software—to ensure continued conformance
with the Documentation and any applicable third party documentation. In addition, Customer will
administer related host names, Internet Protocol addresses, network interfaces, access, security,
communications, and equipment and software version control.
5.10.4 Database Administration. Customer will administer the agreed upon database(s)
associated with the Covered Software, including hardware and software components, in accordance with
the Documentation or any applicable third party documentation, which administration shall include,
monitoring the database server, backing up electrical power sources, and configuring and administering of
database schema, application interfaces,networking operating system, communications, and file transfer
software. Customer will maintain database files(e.g.,truncate, cleanup, and delete files consistent with
industry standard practices)and perform regular data backup and data archiving.
5.10.5 Data Review. If Itron determines that it is necessary to evaluate Customer data in order
to reproduce error conditions not reproducible with Itron's standard test data sets,Customer will provide
Itron with access to such data. Itron will manage such data in a secure manner while in use and delete the
data from Itron systems upon completion of the investigation. Itron shall not be liable for any delay or
failure to resolve the problem if access to such production data is denied to Itron.
6. Equipment Maintenance.
6.1. Preventive and Corrective Maintenance. Upon receipt of an item of Covered Equipment, Itron
shall(i)perform the preventive Services under this Addendum that Itron determines are reasonably
necessary to maintain the Covered Equipment in Operating Condition,and(ii) diagnose and correct any
failure in such Covered Equipment as necessary to meet Operating Condition(excluding minor cosmetic
deficiencies such as blemishes, dents or scratches).
6.2. Maintenance Procedures. Customer shall initiate a request under this Addendum for Services for
Covered Equipment by delivering the item in question to the applicable Itron address identified on the
Itron Equipment Repair Table(the"Repair Table"),which can be obtained by calling(877)487-6602.
Return of the Covered Equipment shall be at Customer's expense and in accordance with the applicable
Return Material Authorization("RMA")procedures. Upon receipt of Covered Equipment(with the
required information)under Itron's RMA procedures, Itron shall assess the item to determine(a)whether
it is in fact Covered Equipment and(b)whether the maintenance requested is included within the Services
ordered by Customer and not otherwise excluded from coverage as provided herein. If the returned
equipment is determined to be Covered Equipment and the maintenance requested is in fact included in
1RR
the Services ordered by Customer, Itron shall then provide the applicable Services and shall make
commercially reasonable efforts to return the item of Covered Itron Equipment to Customer at Itron's
expense within the applicable turnaround time identified on the Repair Table. Returned equipment that
is found not to be Covered Equipment, or if maintenance or support that is requested is determined not to
be included in the Service ordered by Customer,then Itron will provide a quote to Customer under
Section 6.4, below.
6.3. Exclusions. The Services described herein do not include repairs related to: (i) damage due to
external causes, including accident, abuse, misuse, inadequate maintenance, problems with electrical
power, acts of God; usage not in accordance with product instructions or in a configuration not approved
by Itron; (ii) service or repair processes(including installation or de-installation of equipment, parts, or
firmware/software)not performed or authorized by Itron; (iii)use of parts, configurations or repair depots
not certified by Itron; or(iv) Customer's failure to perform Customer responsibilities in accordance with
this Addendum, including caring for Products in accordance with System Documentation.
6.4. Estimation Fees. Itron will provide Customer with a price quote for the estimated cost, including
labor,materials and shipping, for any repairs that are requested, but not included under this Addendum
(whether because the item is not covered or because the nature of the repair is not included). If Customer
elects to have Itron proceed with the requested maintenance on any such item, Itron shall provide such
services at Itron's then-current rates. If Customer elects not to proceed with the requested repair, Itron
will return the item of equipment at Customer's expense. Itron may charge Customer its then-current
handling, inspection and shipping fees for any such returned equipment.
6.5. Adding/Restoring Equipment to Maintenance Services. Following the effective date of this
M&S Addendum, additional Covered Equipment purchased by Customer, of a similar type and model
already covered by Services under this Addendum, shall automatically be deemed to be Covered
Equipment following expiration of the warranty for such equipment. If Customer declines coverage after
the end of warranty, discontinues Services for any Covered Equipment or has Covered Equipment
serviced or repaired by a third party that is not Itron certified, and thereafter wishes to add such
equipment as Covered Equipment, Itron may, prior to such equipment being included as Covered
Equipment,(i)inspect such equipment at its then-current rates to determine whether it is in Operating
Condition and/or(ii)charge its then-current re-certification fee, in addition to the Covered Equipment's
first term maintenance fee.
6.6. Customer Equipment Responsibilities. Itron shall make available, and Customer shall obtain,a
copy of Itron's user documentation for Covered Equipment and Customer shall perform regular
preventive maintenance for each such item in accordance with such documentation. Customer shall also
keep accurate records of Covered Equipment serial numbers and locations to assist Itron with the
Services.
6.7. Loaner Equipment Program. Subject to the requirements below, Itron shall make commercially
reasonable efforts to provide Customer Loaned Mobile/Handheld Equipment for the Customer to use
(each an item of while a Mobile Collector or Handheld unit that is Covered Equipment is receiving
Services under this Loaned Mobile/Handheld Equipment. Itron shall provide Loaned Mobile/Handheld
Equipment if all the following criteria are satisfied:
6.7.1. Customer has maintained an inventory of spare Mobile Collectors or Handheld units equal
to at least ten(6)percent of the number of Mobile Collectors or Handheld units deployed in Customer's
service territory(having at least one spare Mobile Collector)and such inventory has been depleted;
1 fig
6.7.2. Itron has provided preventive Maintenance Services for each of Customer's Mobile
Collectors or Handheld Devices(as applicable)that are Covered Equipment in the 12-month period prior
to Customer's request for Loaned Mobile/Handheld Equipment; and
6.7.3. Itron is unable to return the Mobile Collector or Handheld Devices, as applicable,receiving
Services within the applicable turnaround time set forth in the Repair Table.
6.7.4. Loaned Mobile/Handheld Equipment will remain the property of Itron and shall be returned
to Itron promptly upon receipt of the corresponding item of Covered Equipment. For Loaned
Mobile/Handheld Equipment that is not returned within fourteen (14)days from shipment of the
corresponding item of Covered Equipment, Itron may charge a late fee equal to ten(10)percent of the
then-current list price for the item of Loaned Mobile/Handheld Equipment for each thirty(30)day period
during which the item of Loaned Mobile/Handheld Equipment remains unreturned. Itron shall pay the
cost of delivering Loaned Mobile/Handheld Equipment to Customer and Customer shall pay the cost of
returning Loaned Mobile/Handheld Equipment to Itron.
7. Fees and Invoicing. As compensation for the Services under this Addendum, Customer shall, in
advance, pay to Itron the Annual Fee for each Maintenance Year in which it receives Services under this
Addendum. Itron shall invoice Customer for Services to be provided during the first Maintenance Year
as soon as practicable following the Effective Date. For Services provided during any subsequent
Maintenance Year, including Services for newly purchased or licensed Covered Products, Itron shall
provide Customer with a renewal notice at least one-hundred twenty(120) days prior to the
commencement of each Maintenance Year. Customer may discontinue Maintenance Services for a
Product by providing Itron with written notice of non-renewal for such Product no less than ninety(90)
days prior to the commencement of any subsequent Maintenance Year. Approximately twenty(20)days
prior to the commencement of any subsequent Maintenance Year,Itron shall provide Customer with an
invoice for the Annual Fee payable by Customer for the forthcoming Maintenance Year(including the
Annual Adjustment). Itron may, in its discretion, invoice Customer for Services for a Covered Product
that is added during the course of any Maintenance Year as soon as such Covered Product has been added
or at the beginning of the next Maintenance Year.
8. Support For Third Party Products. For any Covered Product that is a"Third-Party Product"
(each,a"Third Party Covered Product")Itron shall provide first-tier Customer support by handling all
initial Customer inquiries, identifying the component involved in the problem and obtaining appropriate
documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts
to facilitate Customer's receipt of maintenance and support for such Third Party Products consistent with
the maintenance terms identified on the Order Document for such Third Party Products. Notwithstanding
anything else to the contrary, Itron's sole obligation with respect to maintenance and support for Third
Party Products shall be as set forth in this Section.
[Attachment 1 Follows]
140
Attachment 1 to Maintenance& Support Services Addendum
—Software Maintenance & Support Service Levels—
Severity Level Response Times Effort Level and Escalation Path
Severity Level 1. Critical During after-hour periods, Itron will make diligent efforts on a 24x7
Business Impact/System Itron will respond to a basis*,or as otherwise agreed by the Parties.A
Down: An Error for which there critical support voice SR shall be escalated to Itron's TSS
is no work-around,which causes messages within 15 minutes Management Team if a Fix is not provided
the Product/Software or a by a return call to within 1 business day of Itron's receipt of the
critical business function/ Customer,which will Customers call and creation of the SR.
process of the Itron system to be validate receipt of the
unavailable. System use and critical support call and *24X7 support for Severity Level 1 Errors is
operation cannot continue. begin the SR process. not currently available for Itron Meter
During regular business- Products,Energy Forecasting and Load
hours Itron will begin the Research Products,and Distribution Products.
SR process during
*Severity 1 errors must be Customer's initial call.
reported by phone to initiate the
Severity 1 response
process. SRs initiated by email
or web interface are logged as a Following the start of the
Severity 3 until reviewed by SR process Itron will
Itron Technical Support Services respond to Customer's SR
and validated as a higher within 2 business hours
priority. with an investigation
response.
Following the investigation
response,Itron will update
Customer at three hour
intervals during each day
the SR remains unresolved,
or as otherwise agreed by
the Parties.
Customer will respond to
an Itron inquiry or request
within three hours.
141
Severity Level Response Times Effort Level and Escalation Path
Severity Level 2. Moderate Itron will respond to Itron will make diligent efforts during normal
Business Impact/Degraded Customer SR within 1 business hours. SRs shall be escalated to
Operation: An Error other than business day and will Itron's TSS Management Team if a Fix is not
a Severity Level 1 Error,for update the SR at least every provided within 3 business days of Itron's
which there is no work-around, other day. receipt of Customer's call and creation of the
which limits access or use of the SR.
software or a business function, Customer will respond to
causing the system to miss an Itron inquiry or request
required business interface or within 1 business day.
deadlines. The system remains
available for operation but in a
restricted fashion.
*Severity 2 errors must be
reported by phone to initiate the
Severity 2 response
process. SRs initiated by email
or web interface are logged as a
Severity 3 until reviewed by
Itron Technical Support Services
and validated as a higher
priority.
•
Severity Level 3. Minor Itron will respond to Itron technical representatives will make
Business Impact/ Customer SR within 2 diligent efforts during normal business hours.
Compromised Operation: An business days.
Error other than a Severity Level
1 or Severity Level 2 Error that
has an inconvenient use of or
aces to a software function.(e.g.,
a feature is not working as
documented but a work-around
is available and significant
business functions are not
materially impaired).
Severity Level 4. No Business Itron will respond to Itron support representatives will devote
Impact/Standard Operation: Customer SR within 3 commercially reasonable efforts during normal
An Error other than a Severity business days,or as business hours.
Level 1,Severity Level 2 or otherwise agreed by the
Severity Level 3 Error. Parties.
Generally a cosmetic Error or an
Error which does not degradate
Customer's use of the system.
Severity Level 5. Customer SR N/A The SR will be evaluated as a potential,future
for an enhancement or new product enhancement.If the enhancement or
functionality. new functionality requires more immediate
attention for Customer,Itron will engage
Itron's Professional Services Group to create a
customized proposal for Customer,at Itron's
then-current services rates.
147
TECHNOLOGY& SERVICES ADDENDUM
—Installation/Implementation Services—
1. Scope. This Addendum applies where: (a)Customer is purchasing installation services for
Equipment, or(b)Customer is purchasing implementation services for the set-up, configuration,and
validation of Licensed Software, Software-as-a-Service, Managed Services, or Cloud Infrastructure
Service.
2. Invoicing. Itron will invoice Customer for Services as set forth in the applicable SOW or pricing
summary. Services performed on a time and materials basis will be invoiced at the end of the calendar
month in which they are performed. Services performed on a fixed fee basis will be invoiced as set forth
on the applicable SOW or, if not set forth on a SOW, upon completion.
3. Authorized Services. Customer will not pay for, and Itron is not required to provide any services,
for which both a statement of work and purchase order have not been issued by Customer and accepted by
Itron. All changes to scope of work must be approved pursuant to the change request procedures of the
Agreement or applicable statement of work.
4. Customer Responsibilities. Customer shall timely perform all of its assigned, implied or assumed
responsibilities under each statement of work using qualified personnel. Customer shall also provide Itron
with reasonable cooperation in connection with the services, including for example,by providing Itron
with reasonable access to Customer's facilities, service territory, personnel, systems, and information.
5. Reference Information. If Customer provides Itron any reference information, designs,technical
information,or other information required to be provided by Customer in connection with the services
(collectively,the"Reference Information"), Itron shall be entitled to rely on the accuracy of such
Reference Information.
6. Delays. To the extent Customer's failure to adhere to Section 3 or Section 4 results in any delay or
increases Itron's cost of performing the services,the delay shall be excused,and Itron reserves the right to
increase its fees as necessary to offset its increased costs of performing the services. Itron will provide
Customer with reasonable evidence of its increases costs of performing the services and will make
commercially reasonable efforts to minimize such costs to the extent practicable under the circumstances
7. Express Warranties for Professional Services. The warranty period for services provided is
ninety(90)days beginning from the completion date of the services. Unless otherwise expressly provided
in a statement of work or other document expressly incorporated into the Agreement, as the sole and
exclusive warranties offered by Itron in connection with this Addendum and each statement of work under
it,Itron warrants to Customer that:
7.1. Services. Services will be provided in a timely, professional, and workmanlike manner.
7.2. Itron Personnel. Itron personnel will have the requisite experience, skills, knowledge,training and
education to perform Services in a professional manner and in accordance with this Addendum and
applicable statement of work.
7.3. Remedies.As Itron's sole and exclusive liability and Customer's sole and exclusive remedy for any
material noncompliance by Itron with the warranties provided under this Section, Itron shall correct the
noncompliance within a reasonable period of time under the circumstances, if Customer gives Itron written
notice(which notice must describe the noncompliance in sufficient detail to enable Itron to provide the
required corrective action)within the applicable notice period. If Itron, in its sole discretion, is unable to
correct the noncompliance, its sole obligation will be to refund to Customer the amount paid for the
services.
[End ofAddendumJ
143
INDIRECT SALES AGREEMENT
This Indirect Sales Agreement (the "Agreement") is entered into as of [month/day/year] (the "Effective Date") by and between Itron,
Inc. ("Itron") and ( ] ("Customer"). Itron and Customer may each be referred to as a "Party'
and together as the"Parties."
Customer shall execute this Agreement prior to its receipt of any Itron software, services or equipment by an authorized Itron distributor
(each a "Distributor"). The terms of Customer's agreement with a Distributor shall govern Customer's purchase of Itron equipment or
services from a Distributor (it being understood that Distributor will pass certain Itron warranties through to Customer). The terms of
this Agreement shall govern (i) any software provided by Itron, regardless of whether the order for such software is placed with a
Distributor or directly with Itron, and (ii)any order of equipment or services placed directly with Itron.
The Parties agree as follows:
1. Software Terms
a. Definitions.
"Delivery,"with respect to Software, means that Itron has either made the Software available to Distributor via electronic means or has
provided the Software to a carrier on physical media for delivery to Distributor.
"Documentation" means all printed or electronic materials published or otherwise that are provided to Customer and that describe or
relate to the functional, operational or performance capabilities of the Software.
"Endpoint' means (i)a physical device (e.g., a meter, encoder-transmitter-receiver or other measuring or monitoring device) that is the
source of data used in the Software application or(ii) a virtual device created in the Software application to simulate the existence of a
physical device. An example of a virtual device that is an Endpoint would include a single electricity meter that serves 10 apartment
units. If the consumption data from that electricity meter was divided between the 10 units (e.g., on the basis of square footage) and
used in the Software application as if that single electricity meter was actually 10 electricity meters, it would count as 10 Endpoints.
Further, each account, whether active or inactive, in the application that is associated with a single physical device counts as a
separate Endpoint.
"Object Code" means the binary, machine-readable version of the Software.
"Software" means software identified on Attachment A that is owned by Itron and any modifications, corrections, improvements or
enhancements thereto provided by Itron.
"Source Code" means human-readable computer programming code, associated procedural code and related documentation.
"Specifications" means the applicable published Itron functional specifications for an item of Software.
"Third Party Software"means software that is not owned by Itron but is identified on Attachment A as being provided by Itron.
"Use" means the ability to run, execute, display and, subject to the restrictions described below, duplicate and distribute internally.
"Warranty Period," with respect to a particular item of Software, means the warranty term beginning on the warranty start date, as set
forth on Attachment A.
b. License Grant.
Subject to the terms of this Agreement, Itron grants to Customer a nonexclusive, nontransferable, perpetual Object Code license to Use
the Software and Documentation for its internal business purposes only in connection with the number of Endpoints set forth in
Attachment A.
c. Restrictions.
As a condition to the foregoing license grant, Customer shall not(i) violate any restriction set forth on Attachment A, (ii) modify or create
any derivative work from the Software, (iii) include the Software in any other software, (iv) use the Software to provide processing
services to third parties or on a service bureau basis, (v) reverse assemble, decompile, reverse engineer or otherwise attempt to derive
Source Code (of the underlying ideas, algorithms, structure or organization)from Software, or (vi) use the Software to process business
information concerning customers derived through merger, asset acquisition or other entity combination. Except as expressly permitted
in this Agreement, Customer may not copy the Software other than to make one machine readable copy for disaster recovery or
archival purposes. Customer may only make copies of Documentation as reasonably necessary for the use contemplated herein. The
Software and Documentation shall be considered the confidential information of Itron and, as such, shall be subject to the confidentiality
provisions of this Agreement.
d. Invoicing.
Distributor will invoice Customer for the Software and Itron will invoice Distributor.
e. Limited Software Warranty
Warranty and Remedy.
For the Warranty Period, Itron warrants to Customer that the Software will perform substantially in accordance with the Specifications.
Itron does not warrant that the Software will operate uninterrupted or error-free. Itron's sole obligation and Customer's exclusive
remedy in connection with the breach of a warranty provided under this Section shall be for Itron to repair or replace the non-
conforming Software. If Itron, in its sole discretion, is unable to repair or replace non-conforming Software, Itron will refund to Customer
the amount paid for such Software. Software that is repaired or replaced pursuant to this Section will be warranted for the remainder of
the original warranty period or 30 days, whichever is longer. Customer's license to Software for which it has received a refund
hereunder shall terminate upon its receipt of a refund.
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ii. Exclusions.
The warranty provided in this Section shall not apply to the extent that non-compliance relates to or is the result of (i) use of the
Software in combination with software, equipment or communications networks not provided by Itron, (ii) a change to the Software's
operating environment not made or authorized by Itron, (iii) Customer's failure to install any correction or enhancement provided by
Itron, (iv) viruses introduced through no fault of Itron, (v) any use of the Software not authorized by this Agreement. The warranty
provided in this Section is valid only if Customer has complied with the terms of this Agreement (including paying the applicable
Software license fees) and shall be void to the extent of any modification to the Software not authorized by Itron.
f. Third Party Software and Documentation.
Itron shall provide the Third Party Software, if any, identified on Attachment A and any related documentation. Any Third Party
Software, and related documentation provided by Itron in connection with this Agreement shall be subject to a separate license
agreement between the Customer and the third party software provider and will be subject to separate third party warranties, if any.
Customer agrees that it will be bound by and will abide by all such third party software licensing arrangements. Customer is solely
responsible for acquiring any software that is required to use the Software or Third Party Software.
g. Audit.
Customer will maintain accurate and detailed records as necessary to verify compliance with this Agreement. Itron may audit these
records to verify compliance at any time during Customer's regular business hours after giving notice 5 business days in advance of the
audit. Except as described below, Itron will bear all costs and expenses associated with the exercise of its audit rights. Any errors in
payments identified will be corrected by Customer by appropriate adjustment. In the event of an underpayment of more than 5 percent,
Customer will reimburse Itron the amount of the underpayment, reasonable costs associated with the audit, and interest on the overdue
amount at the maximum allowable interest rate from the date the obligation accrued.
h. Obligations Upon Termination for Cause.
Upon a termination by Itron for cause, Customer's license to any Software and right to receive maintenance and support for such
Software shall immediately terminate and Customer shall (i) delete any Software from all of its computers, (ii) immediately deliver to
Itron or destroy all copies of such Software and any related Documentation and (iii) certify in writing to Itron within 10 days of any such
termination that, to the best of Customer's knowledge, Customer has complied with this Section.
i. Other Provisions.
Customer shall not, directly or indirectly, export or transmit the Software to any country to which such export or transmission is
prohibited by any applicable regulation or statute. The Parties agree that Software provided under this Agreement shall be deemed to
be "goods" within the meaning of Article 2 of the Uniform Commercial Code, except when such a practice would cause an
unreasonable result. The Parties agree that the Uniform Computer Information Transaction Act (or a version thereof or substantially
similar law)shall not govern this Agreement.
2. Equipment Terms
SUB-ITEMS a., b. AND c. BELOW APPLY ONLY TO EQUIPMENT PURCHASED BY CUSTOMER DIRECTLY FROM ITRON:
a. Equipment Purchase.
Customer agrees to purchase the equipment, if any, identified on Attachment A (the "Equipment') from Itron at the price(s) and in the
quantities set forth thereon pursuant to the terms of this Agreement. Prices set forth on Attachment A are valid for one year from the
date of this Agreement.
b. Ordering
During the term of this Agreement, Customer shall order quantities of Equipment by issuing a purchase order, change order or release
(each an "Orden") to Itron, in each case specifying the type and quantity of Equipment, the shipment destination and the requested
delivery date. Unless otherwise agreed in a separate writing signed by an authorized representative of each Party, the requested delivery
date in an Order must be no earlier than ninety days following Itron's receipt of such Order.
c. Firmware
The purchase of Equipment manufactured by Itron will include a perpetual, irrevocable license to use and execute any software
embedded in the Equipment. The license to any software embedded in third party Equipment provided by Itron shall be between
Customer and the manufacturer of such third party Equipment.
d. Invoicing.
Itron will invoice Customer for the Equipment upon shipment.
e. Delivery, Title and Risk of Loss.
Unless otherwise agreed by the Parties, Itron will make arrangements with its carrier to deliver Equipment to Customer's location at
Customer's expense. For Equipment delivered to Canada, title to the Equipment and risk of loss shall pass to Customer upon delivery
to the Customer. For Equipment delivered to all other locations, title to the Equipment and risk of loss shall pass to Customer upon
Itron's delivery to a carrier for shipment to Customer.
f. Limited Equipment Warranty
Warranty and Remedy.
Except as otherwise set forth on Attachment A, Itron warrants to Customer that the Equipment that is manufactured by Itron will be free
from defects in materials and workmanship and will conform to the applicable published Itron specifications for a period of one year
from the date of shipment if purchased directly from Itron and 14 months if purchased through a Distributor. Except to the extent
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otherwise provided in Attachment A, Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a
warranty provided under this Section or under Attachment A shall be for Itron to repair non-conforming Equipment or provide Customer
with replacement Equipment after Customer has returned non-conforming Equipment properly packaged and prepaid to a repair facility
designated by Itron in accordance with Itron's then-current RMA procedures. If Itron, in its sole discretion, determines that it is unable
to repair or replace such non-conforming Equipment, Itron will refund to Customer the amount paid for such Equipment. Equipment
that is repaired or replaced pursuant to this Section will be warranted for the remainder of the original warranty period or 30 days,
whichever is longer. Customer will pay the cost of returning non-conforming Equipment to the place of repair designated by Itron and
Itron will pay the cost of delivering repaired or replacement Equipment to Customer.
ii. Exclusions.
The warranty provided herein does not cover damage due to external causes, including accident, abuse, misuse, inadequate
maintenance, problems with electrical power, acts of God; service (including installation or de-installation) not performed or authorized
by Itron; usage not in accordance with product instructions or in a configuration not approved by Itron; normal wear and tear; and
problems caused by use of parts and components not supplied by Itron. The warranty provided herein shall be void if the Equipment is
modified in a way not authorized in writing by Itron. The above warranty does not cover any third party equipment provided by Itron.
Any warranty for such equipment will be between Customer and the third party manufacturer.
3. Cloud Service Terms
a. Access to Cloud Service.
Subject to the terms of this Agreement, Itron grants to Customer, for its internal business purposes only, the non-transferrable, non-
exclusive right to access and use the service identified on Attachment A (the "Cloud Service") in accordance with the terms of service
attached hereto as Attachment B (the"Terms of Service").
b. Use Restrictions.
Customer is responsible for maintaining the confidentiality of all information required to access the Cloud Service and for the activities
of its employees or representatives that access the Cloud Service. Customer will not (i) access or use the Cloud Service other than in
accordance with the Cloud Service documentation; (ii) reverse engineer the software underlying the Cloud Service; (iii) engage in any
activity that interferes with or disrupts the Cloud Service or any servers or networks connected to the Cloud Service; (iv) allow a third
party to access the Cloud Service or operate the Cloud Service for the benefit of a third party, including as a service bureau; (v) modify
or create derivative works based on the Cloud Service; or(vi) use the Cloud Service in a manner that violates any law or regulation or
the rights of any third party.
c. Cloud Service Term.
one-year period beginning on the Effective Date. Thereafter, Itron
Itron will make the Cloud Service available to Customer for an initialy g g
shall provide the Cloud Service for successive one-year periods unless the Cloud Service is terminated in writing by either Party at least
90 days prior to the end of the then-current one-year period.
d. Invoicing.
Itron shall invoice Customer for the initial annual Cloud Service fee identified on Attachment A immediately following the Effective Date.
Thereafter, Itron shall invoice Customer for each successive one-year period prior to the commencement of such period. Itron may
elect to increase the annual fee for any successive annual period by providing Customer with written notice of such increase at least 90
days prior to the commencement of such period.
e. Customer Data.
Customer retains all right, title and interest in and to any electronic data or information contained in any database, table or similar file or
document provided by Customer for use in connection with any Cloud Service (the "Customer Data"). Customer grants to Itron a
license to use the Customer Data to the extent necessary for Itron to provide the Cloud Service, or as required by law. Customer is
solely responsible for the Customer Data, including providing the Customer Data required for proper operation of the Cloud Service,
and will not provide, post or transmit any Customer Data or any other information or material that: (i) infringes or violates the rights of
any third party or any law or regulation or(ii) contains any virus or programming routine that has the effect of damaging, surreptitiously
intercepting or expropriating any system, data or personal information. Itron may take any remedial action it deems advisable to
address any violation of this Section but Itron is under no obligation to review Customer Data for accuracy or potential liability.
Customer agrees to indemnify Itron for any loss or damage suffered by ltron in connection with Customer's breach of its obligations
under this Section.
f. Service Levels.
Itron agrees to make commercially reasonable efforts to: (i) maintain Appropriate Security Measures (defined below); (ii) provide regular
backups for the Customer Data as further described in the Terms of Service; and (Hi) make the Cloud Service generally available 24
hours a day and 7 days a week except for(y) planned downtime in accordance with the Terms of Service and (z) downtime caused by
circumstances beyond Itron's reasonable control, including telecommunications or network failures or delays, computer failures that
could not reasonably have been prevented by Itron or acts of vandalism (e.g., network intrusions and denial of service attacks). Itron's
sole obligation, and Customer's exclusive remedy, in connection with a breach of any obligation of Itron with respect to the performance
or availability of the Cloud Service shall be for Itron, at its option, to correct the failure or to refund to Customer the amount paid for the
Cloud Service for the period in which it was affected. Customer's subscription to the Cloud Service shall terminate upon its receipt of
any such refund. "Appropriate Security Measures" means customary technical, physical and procedural controls to protect Customer
Data against destruction, loss, alteration, or unauthorized disclosure to third parties. Customer acknowledges that, notwithstanding
Appropriate Security Measures, use of or connection to the Cloud Service presents the opportunity for unauthorized third parties to
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circumvent such precautions and illegally gain access to the Cloud Service and Customer Data. Accordingly, Itron does not guarantee
the privacy, security or authenticity of any information stored in connection with or transmitted to or from any Cloud Service.
g. Federal Communications Commission ("FCC") Licensed Facilities.
Customer acknowledges and agrees that Itron maintains the exclusive right to operate and control any Federal Communications
Commission ("FCC") licensed facilities involved in the provision of services, including the transmitter and other components that
produce RF energy (e.g. Itron Cell Control Units, Endpoints, etc.). Itron will make all decisions regarding any FCC licenses used to
implement the Cloud Services provided for by this Agreement, including the preparation and filing of applications with the FCC.
4. Payment Terms and Taxes.
The following terms shall apply to any equipment, services or software purchased by Customer directly from Itron. For invoices not
paid within 30 days of the invoice date, in addition to other remedies to which ltron may be entitled, Itron may charge Customer a late
fee of one percent per month applied against overdue amounts. Customer shall also be responsible for collection costs associated with
late payment, if any, including reasonable attorneys' fees. No endorsement or statement on any check or payment or in any letter
accompanying a check or payment or elsewhere shall be construed as an accord or satisfaction. Unless otherwise indicated on
Attachment A, Customer shall pay all amounts owing under this Agreement in U.S. Dollars. The prices set forth on Attachment A do
not include taxes. Customer will be responsible for and pay all applicable sales, use, excise, value-added and other taxes associated
with the provision of products or services by Itron, excluding taxes on Itron's income generally. If Customer is a tax exempt entity, or
pays taxes directly to the state, Customer will provide Itron with a copy of its Tax Exemption Certificate or Direct Pay Permit, as
applicable, upon execution of this Agreement.
5. Changes.
Changes to the products or services ordered by Customer pursuant to this Agreement, including the purchase of additional quantities or
entirely new products or services, may be made at Itron's then-current pricing by purchase order or Change Order(in a form acceptable
to Itron), provided that any such purchase order must first be accepted by Itron.
6. Confidentiality.
With respect to any information supplied in connection with this Agreement and designated by either Party as confidential, or which the
recipient should reasonably believe to be confidential based on its subject matter or the circumstances, the recipient agrees to protect
the confidential information in a reasonable and appropriate manner, and to use and reproduce the confidential information only as
necessary to realize the benefits of or perform its obligations under this Agreement and for no other purpose. The obligations in this
Section will not apply to information that is: (i) publicly known; (ii) already known to the recipient; (iii) lawfully disclosed by a third party;
(iv) independently developed; or (v) disclosed pursuant to a legal requirement or order. The recipient may disclose the confidential
information on a need-to-know basis to its contractor's, agents and affiliates who agree to confidentiality and non-use terms that are
substantially similar to these terms. The parties acknowledge and agree that any software provided by Itron in connection with this
Agreement shall be considered the confidential information of Itron.
7. IP Ownership
Between Itron and Customer, all patents, copyrights, mask works, trade secrets, trademarks and other proprietary rights in or related to
any product, software or deliverable provided by Itron pursuant to this Agreement are and will remain the exclusive property of Itron.
Any modification or improvement to an Itron product or deliverable that is based on Customer's feedback shall be the exclusive property
of Itron. Customer will not take any action that jeopardizes Itron's proprietary rights nor will it acquire any right in any such product,
software or deliverable or Itron's confidential information other than rights granted in this Agreement.
8. Indemnification
a. General Indemnity.
ltron will defend Customer from any third party claim for (i) wrongful death of or bodily injury, to the extent caused by Itron's gross
negligence or intentional torts, or(ii) physical damage to tangible personal property, to the extent caused by Itron's gross negligence or
intentional torts, and will pay costs and damages awarded against Customer in any such claim that are specifically attributable to Itron's
gross negligence or intentional torts or those costs and damages agreed to by Itron in a monetary settlement of such claim.
b. Infringement Indemnity.
Itron will defend at its own expense any action brought against Customer by an unaffiliated third party to the extent that the action is
based upon a claim that any product manufactured, software licensed or service provided by Itron hereunder directly infringes any U.S.
patent (issued as of the Effective Date) or any copyright or trademark, and Itron will pay those costs and damages awarded against
Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to by Itron in a
monetary settlement of such action. The foregoing indemnity does not apply to products not manufactured by Itron or software licensed
by third parties.
c. Conditions to Infringement Indemnity.
Itron's infringement indemnity obligations under this Section are conditioned on Customer's agreement that if the applicable product or
service, becomes, or in Itron's opinion is likely to become, the subject of such a claim, Customer will permit Itron, at Itron's option and
expense, either to procure the right for Customer to continue using the affected product or service or to replace or modify the same so
that it becomes non-infringing. Such replacements or modifications will be functionally equivalent to the replaced product or service. If
the foregoing alternatives are not available on terms that are reasonable in Itron's judgment, Itron shall have the right to require
Customer to cease using the affected product or service in which case Itron will refund to Customer the depreciated value of the
affected product or service.
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d. Exclusions.
Itron shall have no obligation under this Agreement to the extent any claim of infringement or misappropriation results from: (i) use of a
product or service, other than as permitted under this Agreement or as intended by Itron, if the infringement would not have occurred
but for such use; (ii) use of any product or service in combination with any other product, equipment, software or data, if the
infringement would not have occurred but for such combination; (iii) any use of any release of a software or any firmware other than the
most current release made available to Customer, (iv) any claim based on Customer's use of a product after Itron has informed
Customer of modifications or changes to the product required to avoid such claims and offered to implement those modification or
changes, if such claim would have been avoided or mitigated by the implementation of Itron's suggestions, (v) any modification to a
product made by a person other than Itron or an authorized representative of Itron, or (vi) compliance by Itron with specifications or
instructions supplied by Customer. Itron shall not be liable hereunder for enhanced or punitive damages that could have been avoided
or reduced by actions within the control of Customer.
e. Right to Defend.
As a condition to Itron's indemnity obligations under this Agreement, Customer will provide Itron with prompt written notice of the claim,
permit Itron to control the defense or settlement of the claim and provide Itron with reasonable assistance in connection with such
defense or settlement. Customer may employ counsel at its own expense to assist it with respect to any such claim.
f. Indemnity Disclaimer
THIS SECTION CONSTITUTES ITRON'S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS
BROUGHT AGAINST CUSTOMER.
9. Warranty Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ITRON DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES,
CONDITIONS OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT AND (III)
WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED
WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD.
10. WAIVER OF CONSEQUENTIAL DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR COVER OR FOR
INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION OF DATA OR LOSS OF REVENUE, SAVINGS
OR PROFITS) OR EXEMPLARY DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ITRON'S PRICING
REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
11. CAP ON LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR A BREACH BY CUSTOMER OF (I)
ANY INTELLECTUAL PROPERTY RIGHT OF ITRON OR (II) ANY LICENSE GRANTED BY ITRON HEREUNDER, IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF FIFTY PERCENT (50%) OF THE FEES PAID BY CUSTOMER
TO ITRON UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF ANY CLAIM. THIS
LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE. ITRON'S PRICING REFLECTS THIS ALLOCATION OF
RISKS AND LIMITATION OF LIABILITY.
12. Term and Termination
a. Term of Agreement.
Unless terminated earlier as provided herein, the term of this Agreement shall be from the Effective Date through December 31st of the
hereunder have beenprovided. The term of this Agreement shall thereafter
year in which anyproducts or services to be providedg
automatically renew for successive one year periods unless either Party provides the other with written notice of its intent not to renew
at least 90 days prior to such termination; provided, however, that Customer shall be obligated to purchase and Itron shall be obligated
to provide any product or service that is the subject of an unfulfilled order accepted by Itron prior to the time of any such termination.
Notwithstanding the foregoing, the term of any license provided by Itron hereunder shall be as set forth in the provision granting such
license.
b. Termination for Cause.
Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent,
executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings; (H) breaches
its obligations related to the other Party's confidential information; or (iii) commits a material breach of this Agreement, the
Distributor/Customer agreement or the Distributor/Itron agreement that remains uncured for 30 days following delivery of written notice
of such breach (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this
Agreement that are in breach or default and the action required to cure the breach or default).
c. Survival.
Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this
Agreement shall survive termination or expiration and continue in full force and effect for the period so contemplated including, but not
limited to, provisions relating to warranties and warranty disclaimers, intellectual property ownership, payment terms, confidentiality,
waiver of consequential damages, and cap on liability.
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13. Miscellaneous
a. Entire Agreement.
This Agreement and any attachments hereto constitute the entire agreement between the Parties with respect to the subject matter
hereof and supersede all previous agreements pertaining to such subject matter. All prior agreements, representations, warranties,
statements, negotiations, understandings, and undertakings are superseded hereby and Customer represents and acknowledges that it
has not relied on any representation or warranty other than those explicitly set forth in this Agreement in connection with its execution of
this Agreement. Neither Party shall be bound by terms and conditions imprinted on or embedded in purchase orders, order
acknowledgments, statements of work not attached hereto or other communications between the Parties subsequent to the execution
of this Agreement.
b. Amendments and Waivers.
Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in
a particular instance and either retroactively or prospectively), only by a writing signed by an authorized representative of each Party
and declared to be an amendment hereto. No delay or failure to require performance of any provision of this Agreement shall constitute
a waiver of that provision. No waiver granted under this Agreement as to any one provision herein shall constitute a subsequent waiver
of such provision or of any other provision herein, nor shall it constitute the waiver of any performance other than the actual
performance specifically waived.
c. Governing Law;Jury Trial.
This Agreement and performance hereunder will be governed by and construed in accordance with the laws of the State of Washington
without reference to Washington conflicts of law principles or the United Nations Convention on Contracts for the Sale of Goods. THE
PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM ARISING IN ANY
WAY IN CONNECTION WITH THIS AGREEMENT.
d. Assignment.
Customer may not assign or transfer its interests, rights or obligations under this Agreement by written agreement, merger,
consolidation, operation of law or otherwise without the prior written consent of an authorized executive officer of Itron. Any attempt to
assign this Agreement by Customer shall be null and void. For purposes of this Agreement, the acquisition of an equity interest in
Customer of greater than 25 percent by any third party shall be considered an assignment.
e. Publicity.
Unless otherwise provided in a separate confidentiality agreement between the Parties, each Party may issue a press release following
the execution of this Agreement, subject to the other Party's written approval, which shall not be unreasonably withheld. Each Party
hereby consents to the other Party's use of its name, URL and logo on its website and in its customer and partner lists for corporate
and financial presentations.
f. Force Majeure.
Neither Party will be responsible for any failure or delay in performing any obligation hereunder if such failure or delay is due to a cause
beyond the Party's reasonable control, including, but not limited to acts of God, flood, fire, volcano, war, third-party suppliers, labor
disputes or governmental acts (a"Force Majeure Event'). Notwithstanding the foregoing, no obligation to make any payment required
under this Agreement is excused as a result of a Force Majeure Event.
g. Notices.
Any notice required or permitted under this Agreement or required by law must be in writing and must be delivered in person, by
facsimile, by certified mail (return receipt requested), or by a nationally recognized overnight service with all freight charges prepaid, to
the address set forth below. Notices will be deemed to have been given at the time of actual delivery, if in person, or upon receipt (as
evidenced by facsimile confirmation, return receipt or overnight delivery verification). Either Party may change its address for notices
by written notice to the other Party in accordance with this Section.
Itron: Attn: General Counsel Customer:
Itron, Inc.
2111 North Molter Road
Liberty Lake,WA 99019
h. Miscellaneous.
Headings used in this Agreement are intended for convenience or reference only and will not control or affect the meaning or
construction of any provision of this Agreement. If any provision in this Agreement is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby and such provision shall be
interpreted so as to best accomplish the intent of the Parties within the limits of applicable law. Any principle of construction or rule of
law that provides that an agreement shall be construed against the drafter of the agreement shall not apply to the terms and conditions
of this Agreement. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered
will be deemed an original, and all of which together shall constitute one and the same agreement. If available, maintenance and
support for products will be provided pursuant to a separate maintenance agreement. Itron shall perform all work to be performed in
connection with this Agreement as an independent contractor and not as the agent or employee of Customer. All persons furnished by
Itron shall be for all purposes solely Itron's employees or agents and shall not be deemed to be employees of Customer for any
purpose whatsoever. This Agreement is entered into only for the benefit of Customer and Itron. No other person or entity shall have
the right to make any claim or assert any right hereunder, and no other person or entity shall be deemed a beneficiary of this
Agreement.
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[Signature Page Follows]
7
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15(l
Agreed to and accepted:
Itron, Inc. Customer
Signature: Signature:
Print Name: Print Name:
Title: Title:
Date: Date:
Tax Exempt: Yes/No (if Yes, attach copy of Tax Exemption Certificate)
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151
ATTACHMENT A-1
Please check the type of Software being licensed or hosted (Itron Cloud Service) and enter the number of meters.
Software Units Warranty Warranty Itron Cloud
Start Date Term Service
*MV-RS Up to Delivery 14 months N/A
Endpoints
Field Collection System Software Up to Delivery 5 months
r
Endpoints
Network Software Up to Delivery 5 months r
Endpoints
Network Software—Outage Notification Up to Delivery 5 months N/A
Endpoints
Itron Analytics Up to Delivery 5 months
r
Endpoints
Itron Analytics Customer Portal Up to Delivery 5 months
Endpoints
Itron Security Manager(ISM) Up to Delivery 5 months
Endpoints r 1
Field Deployment Manager(FDM) Up to Delivery 5 months .
Endpoints
FDM—Endpoint Tools Enhanced Up to Delivery 5 months r
Endpoints
Mlogonline Up to Delivery 5 months r
Endpoints
Mobile Collector Software [Up to Delivery 5 months [N/A]
Endpoints]
*Customer receives 5 months of Phone Support at no charge for the MV-RS Product.
PRICING SUMMARY FOR PRODUCTS AND SERVICES PURCHASED DIRECTLY FROM ITRON
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ATTACHMENT A-2
Warranty Terms
Product Warranty Terms
Centron and Sentinel 3 years from shipment
electricity meters
Repairs for out-of- Itron shall perform the repairs with reasonable care and in a diligent and competent manner. Itron's
warranty electricity meter: sole obligation in connection with repair warranty failures shall be, at its option, to correct or re-perform
repairs or refund to Customer the amount paid for the repairs. Customer must report any deficiencies
in repair work to Itron in writing within 90 days of shipment to receive the remedies described herein.
200W series water Standard Warranty: Full warranty consistent with the warranty terms in the Agreement for the first 5
endpoints(including years from shipment.
battery) Optional Extended Warranty (if purchased by Customer):
For warranty claims in years 6 through 10, Itron's sole obligation will be to provide Customer with a
discount on replacement product equal to 100 percent of its then-current list price for the replacement
product.
For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a
discount on replacement product equal to 50 percent of its then-current list price for the replacement
product.
For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a
discount on replacement product equal to 25 percent of its then-current list price for the replacement
product.
The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third
party reading system that is not approved by Itron.
100W and 60W series Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment.
. water endpoints For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a
(including battery) discount on replacement product equal to 50 percent of its then-current list price for the replacement
product.
For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a
discount on replacement product equal to 25 percent of its then-current list price for the replacement
product.
The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third
party reading system that is not approved by Itron.
Leak Sensor Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment.
For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a
discount on replacement product equal to 50 percent of its then-current list price for the replacement
product.
For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a
discount on replacement product equal to 25 percent of its then-current list price for the replacement
product.
Upgraded handhelds or 90 days from shipment
mobile collectors
METRIS Meters and 1-25( Itron warrants that eighty five percent(85%) or more of the METRIS Meters and 1-250 Meters shipped
Meters to Customer during any calendar year will be free from defects in materials and workmanship such
that they maintain set point calibration that is within two percent of their original factory set point
calibration (open and check) ("Calibration Warranty"). The foregoing Calibration Warranty is valid until
the earlier of(i) 15 years from shipment to Customer of the METRIS Meter and 1-250 Meter for which
warranty coverage is sought, (ii)the measurement of more than one million cubic feet of gas
measured by such meter, or(iii) until such meter is replaced by Customer in connection with a periodic
meter change-out.
Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty
provided under this Section shall be for Itron, at its option,to repair any non-conforming METRIS Meters
and 1-250 Meters, provided that if Itron determines that it is unable to repair a non-conforming METRIS
Meter and 1-250 Meter, Itron will refund to Customer the depreciated value of such non-conforming
METRIS Meter and 1-250 Meter. At the request of Itron, Customer will provide evidence of a meter's
service history to verify warranty coverage.
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ATTACHMENT B
Terms of Service
(TO BE ATTACHED IF CLOUD SERVICE IS PURCHASED)
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MAINTENANCE AGREEMENT
This Maintenance Agreement (this "Maintenance Agreement") is entered into as of [month/day/year] (the "Effective Date") by and
between Itron, Inc. ("Itron") and [ 1 ("Customer"). Itron and Customer may each be referred to as a "Party' and
together as the"Parties." The Parties agree as follows:
1. Technical Support
a. Support Services.
Itron will make available qualified technical representatives by telephone, email or other remote means during its then-current normal
business hours to assist Customer Coordinators (defined below) with the operation of and answer questions related to the software
(the "Software") and equipment (the "Equipment') identified on Attachment A (together, the "Products"), which are covered by the
services described herein (the "Maintenance Services"). Such technical support shall include, but is not limited to, troubleshooting,
problem diagnosis, release or system management, and recommendations for fully utilizing the Products. Itron's current Support
Services contact and support hours are described in the "Itron Supports Services Contacts" document (the "Contacts Document"),
which can be obtained by calling (877) 487-6602. Consistent with Section 1.c hereof, Customer will not use Support Services
technical representatives in lieu of having qualified and trained support personnel of its own.
b. Field Support.
Upon mutual agreement of the Parties, Itron will dispatch support personnel to Customer's location to provide technical support. Such
support will be billed at Itron's then-current hourly rates (with reasonable travel and living expenses invoiced at Itron's cost) unless the
causereported of the re orted p roblem is found to be the fault of Itron.
c. Customer Coordinators and Service Requests.
Customer will identify no more than 2 supervisory level employees (each a "Customer Coordinator") for each Itron product line, as
identified in the Contacts Document, to serve as administrative liaisons to Itron for all matters pertaining to the Maintenance Services
for such product line. Customer Coordinators shall report problems with Software or Equipment (each such report, a "Service
Request) as soon as practicable for entry into Itron's support tracking system. Before a Customer Coordinator interfaces with Itron,
he or she will attend training sessions offered by Itron to ensure that he or she is (a) knowledgeable about the operation of the
Products, and (b) qualified to perform problem determination and remedial functions with respect to the Products. Such training
sessions will be at Itron's then-current rates. Customer will be solely responsible for all travel and other expenses incurred in
connection with such training sessions. If Itron notifies Customer that additional training is necessary, Customer will promptly ensure
that all applicable employees and/or Customer Coordinators receive such training.
2. Software Maintenance
a. Definitions.
"Error" means a failure of the Itron Software to substantially comply with the applicable published Itron specifications.
"Fix" means a correction of an Error, including a work-around, in order for the Itron Software to function in accordance with the
applicable published Itron specifications.
"Improvement' means an update, modification, enhancement, extension, new version (regardless of name or number), new module,
or other change to the Itron Software that is developed or otherwise provided by Itron.
"Itron Software" means Software identified on Attachment A as"Itron Software."
"Software Release" means a collection of Fixes or Improvements made available to Itron customers(either via physical media or
download access).
b. Fixes.
ltron shall make commercially reasonable efforts to provide Fixes for Errors identified in a Service Request in accordance with the
Response Time, Effort Level, and Escalation Path guidelines (together, the "Service Levels") outlined below for the applicable
Severity Levels identified therein. Itron's obligations with respect to Service Levels are contingent upon Customer (i) devoting the
same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable
Response Time, and (iii)assigning its most qualified personnel to help Itron address the Error.
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Severity Level Response Times Effort Level and Escalation Path
Severity Level 1. An Error, reported by During after-hour periods, Itron will Itron will make diligent efforts on a 24x7 basis*, or as otherwise
*phone contact, for which there is no work- respond to a critical support voice agreed by the Parties. A SR shall be escalated to Itron's TSS
around, which causes the Product/Software messages within 15 minutes by a Management Team if a Fix is not provided within 1 business
or a critical business function / process of return call to Customer, which will day of Itron's receipt of the Customers call and creation of the
the Itron system to be unavailable. validate receipt of the critical support SR.
call and begin the SR process. *24X7 support for Severity Level 1 Errors is not currently
available for Itron Meter Products, Energy Forecasting and Load
*Severity 1 errors must be reported by During regular business-hours Itron Research Products,and Distribution Products.
phone to initiate the Severity 1 response will begin the SR process during the
process. SRs initiated by email or web initial call.
interface are logged as a Severity 3 until
reviewed by Itron Technical Support
Services and validated as a higher priority. Following the start of the SR process
Itron will respond to Customer within
4 business hours with an initial
response. Following the initial
response to the SR, Itron will update
Customer at three hour intervals
each day for unresolved SRs, or as
otherwise agreed by the Parties.
Customer will respond to an Itron
inquiry or request within three hours.
Severity Level 2. An Error other than a Itron will respond to the Customer Itron will make diligent efforts during normal business hours.
Severity Level 1 Error for which there is no within 1 business day and will update SRs shall be escalated to Itron's TSS Management Team if a
work-around that results in a loss of access the SR at least every other day. Fix is not provided within 3 business days of Itron's receipt of
to the Software or that causes features of Customer will respond to an Itron the Customers call and creation of the SR.
the Software to not work. inquiry or request within 1 business
day.
*Severity 2 errors must be reported by
phone to initiate the Severity 2 response
process. SRs initiated by email or web
interface are logged as a Severity 3 until
reviewed by Itron Technical Support
Services and validated as a higher priority.
Severity Level 3. An Error other than a Itron will respond to the SR within 2 Itron will have technical representatives make diligent efforts
Severity Level 1 or Severity Level 2 Error business days. during normal business hours.
that has a material impact on the
functionality of the Software(e.g., a feature
is not working as documented but a work-
around is available and significant business
functions are not materially impaired).
Severity Level 4. An Error other than a Itron will respond to the SR within 3 Itron will have its support representatives devote commercially
Severity Level 1, Severity Level 2 or business days, or as otherwise reasonable efforts during normal business hours.
Severity Level 3 Error. agreed by the Parties.
Severity Level 5. A SR for an N/A The SR will be evaluated for future product enhancement. If the
enhancement or new functionality. enhancement or new functionality requires more immediate
attention, Itron will engage the Professional Services Group to
create a customized proposal at Itron's then-current services
rates.
C. Improvements.
Itron shall provide Improvements, if any, at its then-current price for such Improvements (or at no charge if such Improvements are
made available to Itron customers generally at no charge).
d. Software Releases.
Release Numbering Convention. Fixes and/or Improvements are made available to customers through
periodic Software Releases. For informational purposes, Itron's current practice (which may be changed at any time in Itron's
discretion) is to provide Releases using the numbering convention "XX.YY.ZZ."
• The "XX" in Itron's numbering convention refers to a "System Release,"which is a new version of
the item of Itron Software. A System Release may include Fixes, Improvements or interfaces to new functional modules or platforms
not previously supported by Itron.
• The "YY" in Itron's numbering convention refers to a "Service Pack Release," which is an update
to a System Release. Service Pack Releases may include Fixes or Improvements and are provided to Itron customers generally on a
periodic basis.
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• The "ZZ" in Itron's numbering convention refers to a "Hot Fix Release," which is an unscheduled
release provided to one or more customers as a short-term, temporary fix to a Severity Level 1 Error. While not utilized by all Itron
Software product lines, Hot Fix Releases are not made available to Itron customers generally but may be included in the next
scheduled Service Pack for general release.
ii. Support for Releases of Itron Enterprise Edition and Openway Software. This subsection applies only
to Itron Enterprise Edition and OpenWay software products. Maintenance Services for Itron Enterprise Edition and OpenWay software
products shall be limited to the most recent System Release and the prior System Release (and the most current Service Pack
Release associated with such System Release). Customer will test and install Service Pack Releases associated with the System
Release in use by Customer within 12 months of such Service Pack Releases being made available to Customer. Customer will
upgrade to the latest System Release at least every twenty-four (24) to thirty-six (36) months. At Customer's request, Itron may
provide Release installation services at its then-current hourly rates. Itron may elect to provide Maintenance Services for an
unsupported Release of Itron Software at its then-current rates for customer support.
iii. Support for Releases of all Other Itron Software. This subsection applies to all Itron Software other than
Itron Enterprise Edition and OpenWay Software products. Maintenance Services for all Itron Software other than Itron Enterprise
Edition and OpenWay software products shall be limited to the most recent System Release and the two prior Service Pack Releases.
Customer will test and install System Releases and Service Pack Releases within 12 months of such Releases being made available
to Customer. At Customer's request, Itron may provide Release installation services at its then-current hourly rates. Itron may elect to
provide Maintenance Services for an unsupported Release of Itron Software at its then-current rates for customer support.
e. Mandatory Revision.
In the event that Itron, in its sole reasonable discretion, determines that any Itron Software is, or may (as applicable) be: (i) subject to a
material Error; (ii) the subject of a material security breach; or, (iii) be subject to a third party infringement claim or suit of any kind,
Itron may issue a mandatory revision in correction of one or more of these issues (a "Mandatory Revision"). Itron disclaims all
liability and obligations that arise due to, or are result of, Customer's failure to test and install a Mandatory Revision in a timely fashion.
f. Interoperability.
Itron makes no representation or warranty regarding the ability of the Itron Software to interoperate with third party hardware or
software other than software or hardware identified as compatible with the Itron Software in Itron's published documentation for such
Itron Software (the"Documentation").
g. Documentation and Software Library.
Itron will make an electronic copy of the Documentation available to Customer at no additional charge via physical media or download
access. Itron will maintain a copy of its most recent supported version of the executable Itron Software to be made available to
Customer as necessary in the event of corrupted or inoperative Itron Software.
h. Restoring Software to Maintenance Services.
If Customer declines Maintenance Services after the end of warranty or discontinues Maintenance Services for any Itron Software, and
thereafter wishes to resume Maintenance Services for the most recent Release of such Itron Software, Customer shall, prior to
receiving such Maintenance Services, notify Itron in writing of its request for Maintenance Services and pay Itron's then-current re-
initiation fee.
i. Exclusions.
Itron shall have no obligation to Customer to the extent any Itron Software is adversely affected by: (i) use of the Itron Software in
combination with other software, equipment or communications networks that are not referenced in the Documentation; (ii) any
modification to the software or operating environment that is made other than through the fault of Itron, after the Effective Date; (Hi)the
use of a version of the Itron Software that is not supported by Itron; (iv) Customer's failure to implement a Fix provided by Itron; (v) the
operation or maintenance of the Itron Software other than through the fault of Itron; (vi) viruses introduced through no fault of Itron; (vii)
use of the Itron Software other than as permitted by Itron, including Software operated on Equipment that has been serviced or
repaired by a third party that is not Itron certified; or (viii) Customer's failure to perform Customer responsibilities in accordance with
this Agreement.
j. Customer Responsibilities.
Remote Communications.
Customer will obtain, install, operate, and maintain remote communications software and equipment in a manner that will allow for
remote access to the Software. Customer will make such remote access available to Itron representatives, as necessary, for remote
diagnosis and troubleshooting of the Software.
H. System Configuration and Administration.
Customer will ensure that its equipment, system peripherals, operating system, and data communications environment associated with
the Software is configured, operated, and maintained in accordance with the Documentation and any applicable third party
documentation. These administrative activities shall include but not be limited to: checking audit logs, clearing discovered exceptions,
and performing daily, weekly, and monthly operational tasks and system responsibilities. Customer will consult with Itron prior to
making changes that may affect the operation of the Software.
Hi. Network Administration.
Customer will monitor and maintain, repair, replace and upgrade its local, and wide area network components (if any)—including
network servers, network clients, network hubs, routers, modems, and other software components necessary for efficient and reliable
network operations associated with the Software—to ensure continued conformance with the Documentation. In addition, Customer
will administer related host names, Internet Protocol addresses, network interfaces, access, security, communications, and equipment
and software version control.
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iv. Database Administration.
Customer will administer the agreed upon database(s) associated with the Software, including hardware and software components, in
accordance with the Documentation or any applicable third party documentation, which administration shall include, monitoring the
database server, backing up electrical power sources, and configuring and administering of database schema, application interfaces,
networking operating system, communications, and file transfer software. Customer will maintain database files (e.g., truncate,
cleanup, and delete files consistent with industry standard practices) and perform regular data backup and data archiving.
v. Data Review.
If Itron determines that it is necessary to evaluate Customer data in order to reproduce error conditions not reproducible with Itron's
standard test data sets, Customer will provide Itron with access to such data. Itron will manage such data in a secure manner while in
use and delete the data from Itron systems upon completion of the investigation. Itron shall not be liable for any delay or failure to
resolve the problem if access to such production data is denied to Itron.
3. Equipment Maintenance
a. Preventive and Corrective Maintenance.
Upon receipt of an item of Itron Equipment (defined below) for which Customer has subscribed to receive Maintenance Services
("Covered Equipment'), Itron shall (i) perform the preventive Maintenance Services that it determines is reasonably necessary to
maintain such Equipment in Operational Condition (defined below), and (H) diagnose and correct any failure in such Equipment as
necessary to meet Operational Condition (excluding minor cosmetic deficiencies such as blemishes, dents or scratches). The term
"Itron Equipment' refers to Equipment identified on Attachment A as "Itron Equipment." The term "Operating Condition" means
capable of performance in accordance with Itron's published specifications.
b. Maintenance Procedures.
Customer shall initiate a request for Maintenance Services for an item of Itron Equipment by delivering the item to the applicable Itron
address identified on the Itron Equipment Repair Table (the "Repair Table"), which can be obtained by calling (877) 487-6602, at
Customer's expense and in accordance with the applicable return material authorization procedure. Upon receipt of an item of Itron
Equipment with the required information, Itron shall assess the item to determine whether it is Covered Equipment and whether the
maintenance requested is included within the Maintenance Services and not otherwise excluded from coverage as provided herein. If
the item of Itron Equipment is Covered Equipment and the maintenance requested is included in the Maintenance Services, Itron shall
provide the applicable Maintenance Services and shall make commercially reasonable efforts to return the item of Itron Equipment to
Customer at Itron's expense within the applicable turnaround identified on the Repair Table. Itron Equipment that is not Covered
Maintenance Services shall be addressed as described
Equipment or maintenance or support that is requested but not included in the
in Section 3.d hereof.
c. Exclusions.
The Equipment Maintenance Services described herein do not include repairs related to:
damage due to external causes, including accident, abuse, misuse, inadequate maintenance, problems
with electrical power, acts of God; usage not in accordance with product instructions or in a configuration not approved by Itron;
ii. service (including installation or de-installation) not performed or authorized by Itron;
Hi. use of parts, configurations or repair depots not certified by Itron;
iv. Customer's failure to perform Customer responsibilities in accordance with this Agreement, including caring
for Products in accordance with user documentation; or
v. Products for which Itron has discontinued Maintenance Services pursuant to Section 5 hereof.
d. Estimation Fees
Itron will provide Customer with a price quote for the estimated cost, including labor, materials and shipping, for any repairs that are
requested but not included in the Maintenance Services (whether because the item of equipment is not covered by Maintenance
Services or because the nature of the repair is not included in Maintenance Services). If Customer elects to have Itron proceed with
the requested maintenance on any such item, Itron shall provide such services at its then-current rates. If Customer elects not to
proceed with the requested repair, Itron will return the item of equipment at Customer's expense. Itron may charge Customer its then-
current handling, inspection and shipping fees for any such returned equipment.
e. Adding/Restoring Equipment to Maintenance Services.
Following the Effective Date, additional Itron Equipment purchased by Customer, of a similar type and model already covered by
Maintenance Services, shall automatically be deemed to be Covered Equipment following expiration of the warranty for such
Equipment. If Customer declines Equipment coverage after the end of warranty, discontinues Maintenance Services for any Covered
Equipment or has Equipment serviced or repaired by a third party that is not Itron certified, and thereafter wishes to add such
equipment as Covered Equipment, Itron may, prior to such equipment being included as Covered Equipment,(i) inspect such
equipment at its then-current rates to determine whether it is in Operating Condition and/or (H) charge its then-current re-certification
fee, in addition to the Equipment's first term maintenance fee.
f. Customer Responsibilities.
Itron shall make available, and Customer shall obtain, a copy of Itron's user documentation for items of Covered Equipment and
Customer shall perform regular preventive maintenance for each such item in accordance with such documentation. Customer shall
also keep accurate records of Equipment serial numbers and locations to assist Itron with the Maintenance Services.
g. Loaner Equipment Program.
Subject to the requirements below, Itron shall make commercially reasonable efforts to provide Customer with a Mobile Collector or
Handheld unit, as applicable, for the Customer to use (each an item of"Loaned Equipment') while a Mobile Collector or Handheld
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unit, as applicable, that is Covered Equipment is receiving Maintenance Services. Itron shall provide Loaned Equipment if all the
following criteria are satisfied:
Customer has maintained an inventory of spare Mobile Collectors or Handheld units equal to at least 10
percent of the number of Mobile Collectors or Handheld units deployed in Customer's service territory (with at least one Mobile
Collector) and such inventory has been depleted;
ii. Itron has provided preventive Maintenance Services for each of Customer's Mobile Collectors or Handheld
Devices (as applicable)that are Covered Equipment in the 12-month period prior to Customer's request for Loaned Equipment; and
iii. Itron is unable to return the Mobile Collector or Handheld Devices, as applicable, receiving Maintenance
Services within the applicable turnaround time set forth on Attachment A.
iv. Loaned Equipment will remain the property of Itron and shall be returned to Itron promptly upon receipt of
the corresponding item of Itron Equipment. For Loaned Equipment that is not returned within 14 days from shipment of the
corresponding item of Itron equipment, Itron may charge a late fee equal to 10 percent of the then-current list price for the item of
Loaned Equipment for each 30 day period during which the item of Loaned Equipment remains unreturned. Itron shall pay the cost of
delivering Loaned Equipment to Customer and Customer shall pay the cost of returning Loaned Equipment to Itron.
4. Compensation and Payment
a. Definitions
"Annual Adjustment' means Itron's standard price increase.
"Annual Fee" means the annual fee set forth on Attachment A hereto for each category of Products identified thereon plus the Annual
Adjustment, if any. The Annual Fee for Maintenance Services to be provided for any partial Maintenance Year(i.e., for Products with a
Maintenance Commencement Date that falls after the beginning of the Maintenance Year) shall be prorated based on the applicable
number of months Customer is to receive Maintenance Services during such Maintenance Year.
"Maintenance Commencement Date" means the date for commencement of the Maintenance Services for a Product identified on
Attachment A hereto.
"Maintenance Year" means any period of 1 year during the Term beginning on the Effective Date or any anniversary thereof.
b. Compensation and Invoicing.
As compensation for the Maintenance Services, Customer shall, in advance, pay to Itron the Annual Fee for each Maintenance Year in
which it receives Maintenance Services. Itron shall invoice Customer for Maintenance Services to be provided during the first
Maintenance Year as soon as practicable following the Effective Date. For Maintenance Services provided during any subsequent
Maintenance Year, including Maintenance Services for newly purchased Products, Itron shall provide Customer with a renewal notice
at least 100 days prior to the commencement of each Maintenance Year. Customer may discontinue Maintenance Services for a
Product by providing Itron with written notice of non-renewal for such Product no less than 90 days prior to the commencement of any
subsequent Maintenance Year. Approximately 20 days prior to the commencement of any subsequent Maintenance Year, Itron shall
provide Customer with an invoice for the Annual Fee payable by Customer for the forthcoming Maintenance Year. Itron may, in its
discretion, invoice Customer for Maintenance Services for a Product that is added during the course of any Maintenance Year as soon
as such Product has been added or at the beginning of the next Maintenance Year.
c. Payment.
Invoices will be due and payable 30 days following the date of invoice. For invoices not paid within 30 days of the invoice date, in
addition to other remedies to which Itron may be entitled, Itron may charge Customer a late fee of 1 percent per month applied against
undisputed overdue amounts. Customer shall also be responsible for collection costs associated with late payment, if any, including
reasonable attorneys' fees. Fees paid pursuant to this Maintenance Agreement, including the Annual Fee, do not include taxes.
Customer will be responsible for and pay all applicable sales, use, excise, value-added and other taxes associated with the provision
of the Maintenance Services, excluding taxes on Itron's income generally. If Customer is a tax exempt entity, or pays taxes directly to
the state, Customer will provide Itron with a copy of its Tax Exemption Certificate or Direct Pay Permit, as applicable, upon execution of
this Agreement. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or
elsewhere shall be construed as an accord or satisfaction. Customer shall pay all amounts due under this Agreement in lawful money
of the United States, unless otherwise provided in Attachment A.
5. Term and Termination
a. Term.
The term of this Maintenance Agreement ("Term") shall commence upon the Effective Date and shall continue unless and until
terminated in accordance with this Section.
b. Termination.
Either party may terminate this Maintenance Agreement effective as of the end of any Maintenance Year by giving the other Party
written notice of termination at least 90 days prior to the end of such Maintenance Year. If either Party commits a material breach of or
default under this Maintenance Agreement or any agreement between the Parties related to this Maintenance Agreement, then the
other Party may give such Party written notice of the breach or default(including, but not necessarily limited to, a statement of the facts
relating to the breach or default, the provisions of this Maintenance Agreement that are in breach or default and the action required to
cure the breach or default) and, at the notifying Party's election, this Maintenance Agreement shall terminate pursuant to this Section if
the breach or default is not cured within 30 days after receipt of notice(or such later date as may be specified in the notice).
c. Effect of Termination.
Itron shall not be obligated to provide any Maintenance Services after the end of the Term. If either Party terminates the Maintenance
Agreement for a reason other than a termination for breach or default or if Itron terminates Maintenance Services for one or more
Products, Customer shall be entitled to a prorated refund of the Annual Fee.
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d. End of Support.
Itron may discontinue Maintenance Services for any Equipment or Software, effective as of the end of the current Maintenance Year,
by giving Customer written notice of such discontinuance no less than 90 days prior to the end of such Maintenance Year. At
Customer's request, Itron may elect to provide custom support for products for which Maintenance Services have been discontinued at
Itron's then-current rates.
e. Survival
Any Section of this Maintenance Agreement, which by its nature is intended to survive termination or expiration, shall survive the
termination or expiration of this Maintenance Agreement.
6. Miscellaneous
a. Disclaimer of Warranties.
EXCEPT AS EXPRESSLY SET FORTH IN THIS MAINTENANCE AGREEMENT, ITRON DISCLAIMS ALL EXPRESS OR IMPLIED
WARRANTIES, CONDITIONS, OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY ARISING OUT OF ANY
COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE PRACTICE.
b. No Consequential Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL ITRON BE LIABLE UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR COVER OR FOR ANY
INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION OF DATA OR LOSS OF REVENUE, SAVINGS
OR PROFITS) OR EXEMPLARY DAMAGES, EVEN IF ITRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR DAMAGES IN EXCESS OF FIFTY PERCENT (50%) OF THE FEES PAID BY CUSTOMER TO ITRON UNDER THIS
MAINTENANCE AGREEMENT DURING THE MAINTENANCE YEAR IN WHICH THE CAUSE OF ACTION GIVING RISE TO THE
LIABILITY AROSE. ITRON SHALL NOT BE LIABLE FOR ANY CLAIM MADE THE SUBJECT OF A LEGAL PROCEEDING MORE
THAN 2 YEARS AFTER THE CAUSE OF ACTION ASSERTED IN SUCH CLAIM AROSE.
d. Force Majeure.
Except for monetary obligations hereunder, neither Party will be responsible for any failure or delay in performing any obligation
hereunder if such failure or delay is due to a cause beyond the Party's reasonable control, including, but not limited to acts of God,
flood,fire, volcano, war, terrorist threats or actions, third-party suppliers, labor disputes or governmental acts.
e. Notices.
Any notice required or permitted under this Maintenance Agreement or required by law must be in writing and must be delivered in
person, by facsimile, by certified mail (return receipt requested), or by a nationally recognized overnight service with all freight charges
prepaid, to the address set forth on the signature page hereto. Notices will be deemed to have been given at the time of actual
delivery, if in person, or upon receipt (as evidenced by facsimile confirmation, return receipt or overnight delivery verification). Either
Party may change its address for notices by written notice to the other Party in accordance with this Section. Notwithstanding the
foregoing, notice of renewal or non-renewal of Maintenance Services shall be sent to the email or other address set forth on the
signature page hereto.
f. Assignment.
Customer may not assign or transfer its interests, rights or obligations under this Maintenance Agreement by written agreement,
merger, consolidation, operation of law or otherwise without the prior written consent of an authorized executive officer of Itron. Any
attempt to assign this Maintenance Agreement by Customer shall be null and void.
g. Nonwaiver.
Any failure by either Party to insist upon or enforce performance by the other Party of any of the provisions of this Maintenance
Agreement or to exercise any rights or remedies under this Maintenance Agreement or otherwise by law shall not be construed as a
waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision, right or remedy in that or any
other instance; rather the provision, right or remedy shall be and remain in full force and effect.
h. Governing Law.
This Maintenance Agreement and performance hereunder will be governed by and construed in accordance with the laws of the State
of Washington without reference to Washington conflicts of law principles or the United Nations Convention on Contracts for the Sale
of Goods. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM
ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT.
i. Confidentiality.
With respect to any information supplied in connection with this Maintenance Agreement and designated by either Party as
confidential, or which the recipient should reasonably believe to be confidential based on its subject matter or the circumstances, the
recipient agrees to protect the confidential information in a reasonable and appropriate manner, and to use and reproduce the
confidential information only as necessary to perform its obligations under this Maintenance Agreement and for no other purpose. The
obligations in this Section will not apply to information that is: (i) publicly known; (ii) already known to the recipient; (iii) lawfully
disclosed by a third party; (iv) independently developed; or (v) disclosed pursuant to a legal requirement or order. The recipient may
disclose the confidential information on a need-to-know basis to its contractor's, agents and affiliates who agree to confidentiality and
non-use terms that are substantially similar to these terms.
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j. Intellectual Property.
Between Itron and Customer, all patents, copyrights, mask works, trade secrets, trademarks and other proprietary rights in or related
to any product, software or deliverable provided in connection with the Maintenance Services are and will remain the exclusive
property of Itron. Any modification or improvement to an Itron product or deliverable that is based on Customer's feedback shall be the
exclusive property of Itron. Customer will not take any action that jeopardizes Itron's proprietary rights nor will it acquire any right in
any such product, software or deliverable or Itron's confidential information other than rights granted in this Maintenance Agreement.
k. Entire Agreement.
This Maintenance Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes
any and all prior agreements between Itron and Customer related to the Maintenance Services and other items furnished under this
Maintenance Agreement. No amendment, modification or waiver of any of the provisions of this Maintenance Agreement shall be valid
unless set forth in a written instrument signed by the Party to be bound thereby.
[Signature Page Follows]
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Agreed to and accepted by:
Customer Itron, Inc.
Signature: Signature:
Print name: Print name:
Title: Title:
Date: Date:
Billing Contact Information Address:
Name: Itron, Inc.
Attention: General Counsel
Address: 2111 North Molter Road
Liberty Lake, WA 99019
Phone:
Email:
Renewal Notice Contact Information
Name:
Address:
Phone:
Email:
Purchase Order Number:
[Signature Page to Maintenance Agreement]
1R7
Attachment A
Please refer to the current Renewal Quote for pricing
* [The Maintenance Commencement Date for Itron Software is the first day of the month following shipment or electronic
delivery by Itron. The Maintenance Commencement Date for Itron Equipment is the warranty expiration date.]
[Attachment A to Maintenance Agreement'
1A3