Loading...
HomeMy WebLinkAboutExhibitlip" GENERAL LICENSE TERMS AND CONDITIONS (E200 6/08) SSRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 ARTICLE 1—DEFINITIONS Definitions. The terms used are defined as follows: a. "Beta" means any alpha, beta, or prerelease Software, Data, Documentation, or Web Services. b. "Data" means any ESRI or third -party digital dataset(s) including, but not limited to, geographic vector data coordinates, raster, reports, or associated tabular attributes, licensed under this License Agreement. c. "Documentation" means all printed and digital materials including, but not limited to, help files, user reference documentation, training documentation, or technical information and briefings. d. "Samples" means sample code, sample applications, add-ons, or sample extensions of Software, Data, Documentation, or Web Services. e. "Software" means all or any portion of ESRI's proprietary source code, components, extensions, dynamic link libraries (DLLs) software technology accessed or downloaded from an authorized ESRI Web site or delivered on any media in any format including backups, updates, service packs, patches, hot fixes, or permitted merged copies. f. "Term License" means licenses provided for use in a limited time period or on a subscription or transaction basis. g. "Web Services" means software services or ESRI or third -party data provided by ESRI that perform geographic information system (GIS) functions, tasks, or data services and are accessed over the Internet. h. "License Manager" means the nondestructive license management software program or hardware key, or similar copy protection mechanism, which controls the distribution of the licensed number of Software copies to requesting end user(s) of Licensee. i. "Force Majeure Event" shall mean an event that satisfies each of the following conditions: (1) the failure or delay could not have been prevented by reasonable precautions, and cannot reasonably be circumvented by the non- performing party through the use of alternate sources, work -around plans, or other means; and (2) the failure or delay is caused, directly or indirectly, by reason of fire or other casualty or accident; strikes or labor disputes; inability to procure raw materials, equipment, power or supplies; war, terrorism or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental agency or intergovernmental body other than a party hereto. ARTICLE 2—INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP Software, Data, Web Services, and Documentation are licensed and not sold. ESRI and its licensors own Software, Data, Web Services, and Documentation, which are protected by United States and applicable international laws, treaties, and conventions regarding intellectual property and proprietary rights including trade secrets. Licensee agrees to use reasonable means to protect Software, Data, Web Services, and Documentation from unauthorized use, reproduction, distribution, or publication. ESRI and its third -party licensors reserve all rights not specifically granted in this License Agreement including the right to change and improve Web Services. ARTICLE 3—GRANT OF LICENSE 3.1 Grant of License. Subject to the terms of this License Agreement, ESRI grants to Licensee a personal, nonexclusive, nontransferable license solely to a. Use the type and number of copies of Software, Data, and Documentation and access Web Services (i) for which the applicable license fees have been paid, (ii) for Licensee's own internal use, and (iii) in accordance with Exhibit 1 and the licensed configuration on file as authorized by ESRI. b. Access and use any secure ESRI Web site resources made available to Licensee for Licensee's own internal use, provided that Licensee follows ESRI's terms of use policy specified therein. All password or controlled access information provided by ESRI shall be treated as ESRI confidential information. c. Notwithstanding any other provision of this License Agreement, ESRI understands that the Licensee is subject to, and shall fully comply with, the provisions of Chapter 119, Florida Statutes. Page I of 6 E200M 6/08 3.2 Beta License. Licensee may be accepted into a current Beta Testing Program. a. If accepted into the Beta Testing Program, ESRI will provide to Licensee access to Beta and will grant Licensee a personal, nonexclusive, nontransferable, royalty -free license to use Beta at the authorized and identified test sites solely for the purpose of testing Beta as delivered, in accordance with the Beta Testing Program guidelines and the terms of this License Agreement. This grant of license is effective from the date accepted into the program or date of receipt of any Beta until the date of the commercial release of Software from ESRI Customer Service or the date of termination of the Beta Testing Program for the specific Beta, whichever is sooner. b. Licensee agrees to provide suggestions or comments regarding performance, usability or effectiveness, bug reports, test reports, or other feedback (collectively, "Feedback") to ESRI with respect to Beta. ESRI retains title to such comments and may freely use, disclose, reproduce, license, distribute, and otherwise commercialize any Feedback. c. Beta and Feedback contain confidential information and trade secrets that are proprietary to ESRI. Licensee agrees to use commercially reasonable means (at least as great as those used by Licensee for its own confidential information) to maintain the integrity, confidentiality, and ESRI proprietary rights in Beta and Feedback. d. Beta is subject to change prior to its commercial release or may never be commercially released. Licensee acknowledges that Beta is not suitable or licensed for full use in any production system and accepts all responsibility for use and any results generated. 3.3 Evaluation License. ESRI may from time to time offer Term License(s) for Software, Data, Web Services, or Documentation for Licensee's evaluation only. 3.4 Consultant or Contractor Access. Subject to Section 3. 1, ESRI grants Licensee the right to provide access to and use of Software, Data, Web Services, or Documentation to any consultant or contractor of Licensee exclusively for the benefit of Licensee. Licensee shall be solely responsible for compliance by consultants and contractors with this License Agreement. Access to or use of Software, Data, Web Services, and Documentation by consultants or contractors not exclusively for the benefit of Licensee is prohibited. ARTICLE 4—SCOPE OF USE 4.1 Permitted Uses a. Licensee may install and store Software, Data, and Documentation on electronic storage device(s). b. Licensee may make one (1) copy of Software, Data, and Documentation for archival purposes. Licensee may make routine computer backups. c. Licensee may customize Software using any (i) macro or scripting language, (ii) published application programming interface (API), or (iii) source or object code libraries, but only to the extent that such customization is described in Documentation. d. Licensee may use, copy, or prepare derivative works of Documentation supplied in digital format and thereafter reproduce, display, and redistribute the customized documentation only for Licensee's own internal use. Portion(s) of Documentation supplied in digital format merged with other software and printed or digital documentation are subject to this License Agreement. Licensee shall include the following copyright attribution notice acknowledging the proprietary rights of ESRI and its licensors: "Portions of this document include intellectual property of ESRI and its licensors and are used herein under license. Copyright Q [Insert the actual copyright date(s) from the source materials] ESRI and its licensors. All rights reserved." 4.2 Uses Not Permitted a. Except as provided herein, Licensee shall not sell, rent, lease, sublicense, lend, assign, or time-share Software, Data, Web Services, or Documentation. Licensee shall not act as a service bureau or commercial application service provider (ASP) that allows third -party access to Software, Data, Web Services, and Documentation. A commercial ASP means a Licensee who uses Software, Data, Web Services, or Documentation for a site or service and operates the site or the service for a profit or generates revenue by charging for access to the site or service. b. Licensee shall not redistribute Software, Data, or Web Services to unauthorized third parties, in whole or in part, including, but not limited to, extensions, components, or DLLs without the prior written approval of ESRI. c. Licensee shall not reverse engineer, decompile, or disassemble Software, Data, Web Services, or Documentation except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction. Page 2 of 6 E200M 6/08 d. Except to the extent that applicable law prohibits this.restriction, Licensee shall not make any attempt to circumvent the technological measure(s) that controls access to or use of Software, Data, Web Services, and Documentation. e. Licensee shall not redistribute Software registration number/license authorization file(s), developer license file(s), or Web Services access codes to unauthorized third parties without the prior approval of SSRI. f. Licensee shall not use Software or Web Services to transfer or exchange any material where such transfer or exchange is prohibited by intellectual property laws or any other applicable laws. g. Licensee shall not remove or obscure any ESRI or its licensors' patent, copyright, trademark, or proprietary rights notices contained in or affixed to Software, Data, Web Services, or Documentation. h. Licensee shall not unbundle individual or component parts of Software or Data for independent use. i. After a reasonable transition period for updating to the most current version of the Software, Licensee shall cease using all prior version(s) of the Software that Licensee has elected to update to the most current version(s) of the Software. j. When the transition to the most current version(s) of the Software is complete, the quantity of Software licenses in use by Licensee at any given time shall not exceed the total quantity licensed by ESRI in accordance with the licensed configuration on file with ESRI Customer Service. ARTICLE 5—TERM AND TERMINATION This License Agreement is effective upon acceptance. This License Agreement and any licenses granted hereunder shall continue until (i) such time that Licensee elects in writing to discontinue use of Software, Data, Web Services, or Documentation and terminates the license; (ii) expiration of a Term License; or (iii) either parry terminates the license for a material breach that is not cured within ten (10) days of written notice to the other party, except that termination is immediate for a material breach of ESRI's or ESRI's licensor's intellectual property rights . Upon termination of a license, Licensee shall (i) cease access and use of Web Services and clear Web Services client -side data cache and (ii) uninstall, remove, and destroy all Software, Data, and Documentation and any whole or partial copies, modifications, or merged portions in any form and execute and deliver evidence of such actions to ESRI. ARTICLE 6—LIMITED WARRANTIES AND DISCLAIMERS 6.1 Limited Warranties. Except as otherwise provided in this Article 6, ESRI warrants that (i) the unmodified Software will substantially conform to the published Documentation and (ii) media on which the Software, Data, and Documentation is provided will be free from defects in materials and workmanship under normal use and service for a period of ninety (90) days from the date of receipt. 6.2 Data and Web Services Disclaimer. Data and Web Services may contain some nonconformities, defects, errors, or omissions. THE DATA AND WEB SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. Without limiting the generality of the preceding sentence, ESRI and its licensors do not warrant that Data and Web Services will meet Licensee's needs or expectations, that the use of Data and Web Services will be uninterrupted, or that all nonconformities can or will be corrected. ESRI and its licensors are not inviting reliance on Data or Web Services, and Licensee should always verify actual Data or Web Services. 6.3 Special Disclaimer. SAMPLES, HOT FIXES, EVALUATION SOFTWARE, AND BETA ARE DELIVERED "AS IS" WITHOUT WARRANTY OF ANY KIND. LICENSEE ASSUMES ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE SAMPLES, HOT FIXES, EVALUATION SOFTWARE, AND BETA. 6.4 Internet Disclaimer. BOTH PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS AND THAT (i) THE INTERNET IS NOT A SECURE INFRASTRUCTURE, (ii) NEITHER PARTY HAS CONTROL OVER THE INTERNET, AND (iii) NEITHER PARTY IS LIABLE FOR DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE WEB SERVICE. 6.5 General Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, ESRI DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ESRI DOES NOT WARRANT AND DISCLAIMS THAT SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION WILL MEET LICENSEE'S NEEDS; THAT LICENSEE'S OPERATION OF THE SAME WILL BE UNINTERRUPTED, ERROR -FREE, FAULT-TOLERANT, OR FAIL-SAFE; OR THAT ALL NONCONFORMITIES CAN OR WILL BE CORRECTED. SOFTWARE, DATA, WEB SERVICES, AND DOCUMENTATION ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS THAT MAY LEAD TO DEATH, PERSONAL Page 3 of 6 E200M 6/08 INJURY, OR PHYSICAL PROPERTY/ENVIRONMENTAL DAMAGE. ANY SUCH USE SHALL BE AT LICENSEE'S OWN RISK AND COST. 6.6 Exclusive Remedy. Licensee's exclusive remedy and ESRI's entire liability for breach of the limited warranties set forth in this Article 6 shall be limited, at ESRI's sole discretion, to (i) replacement of any defective media; (ii) repair, correction, or a workaround for Software subject to the ESRI Support Services Policy; or (iii) return of the license fees paid by Licensee for Software or Documentation that does not meet ESRI's limited warranty, provided that Licensee uninstalls, removes, and destroys all copies of Software or Documentation and executes and delivers evidence of such actions to ESRI. ARTICLE 7—LIMITATION OF LIABILITY 7.1 Disclaimer of Certain Types of Liability. ESRI AND ITS LICENSORS SHALL NOT BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS, LOST SALES, OR BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS COMMITMENTS; LOSS OF ANY GOODWILL; OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT OR USE OF SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION, HOWEVER CAUSED ON ANY THEORY OF LIABILITY, WHETHER OR NOT ESRI OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 7.2 General Limitation of Liability. EXCEPT AS PROVIDED IN ARTICLE 8—INFRINGEMENT INDEMNITY, ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY LICENSEE FOR SOFTWARE, DATA, WEB SERVICES, OR DOCUMENTATION PURSUANT TO THIS LICENSE AGREEMENT. 7.3 Applicability of Disclaimers and Limitations. Licensee agrees that the limitations of liability and disclaimers set forth in this License Agreement will apply regardless of whether Licensee has accepted Software, Data, Web Services, or Documentation or any other product or service delivered by ESRI. The parties agree that ESRI has set its prices and entered into this License Agreement in reliance on the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ARTICLE 8—INFRINGEMENT INDEMNITY 8.1 ESRI shall defend, indemnify, and hold harmless Licensee from and against any loss, liability, cost, or expense, including reasonable attorneys' fees, which may be incurred by Licensee against any claims, actions, or demands by a third party alleging that Software or Documentation infringes a U.S. patent, copyright, or trademark, provided a. Licensee promptly notifies ESRI in writing of the claim; b. Licensee provides documents clearly describing the allegations of infringement; c. ESRI has sole control of the defense of any actions and negotiations related to the defense or settlement of any claim; and d. Licensee cooperates fully in the defense of the claim. 8.2 If Software or Documentation is found to infringe a U.S. patent, copyright, or trademark, ESRI, at its own expense, may either (i) obtain rights for Licensee to continue using Software or Documentation or (ii) modify the allegedly infi-inging elements of Software or Documentation while maintaining substantially similar software or Documentation functionality or data/informational content. If neither alternative is commercially reasonable, the infringing item(s) shall be returned to ESRI, the license shall terminate, and Licensee shall uninstall the infringing items. ESRI's entire liability shall then be to indemnify Licensee pursuant to Section 8.1 and to refund license fees paid by Licensee for the infringing item(s), prorated on a five (5) - year, straight-line depreciation basis beginning from the initial date of delivery. 8.3 ESRI shall have no obligation to defend Licensee or to pay any resulting costs, damages, or attorneys' fees for any claims or demands alleging direct or contributory infringement of Software by (i) the combination of or integration with a product, process, or system not supplied by ESRI; (ii) material alteration by anyone other than ESRI or contractors acting on behalf of Page 4 of 6 E200M 6/08 SSRI; (iii) use after Licensee has been notified of possible infringement; or (iv) use after modifications are provided or a return is ordered by ESRI under Section 8.2. 8.4 In no event shall the indemnification set forth in this Article 8 apply to any Samples, hot fixes, Beta, or evaluation software delivered hereunder. THE FOREGOING STATES THE ENTIRE OBLIGATION OF ESRI WITH RESPECT TO INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. ARTICLE 9—GENERAL PROVISIONS 9.1 Future Orders. Licensee may place orders for Software, Data, Documentation, or maintenance for a period of five (5) years of this Agreement's execution date and such Software, Data, Documentation or maintenance shall be licensed under the terms of this Agreement, except that new Software, Data, and Documentation commercially released during that year may require additional terms, which shall be mutually agreed to in writing by the parties. Any changes to the terms of this Agreement shall be mutually agreed to in writing by both parties.. 9.2 Export Control Regulations. Licensee expressly acknowledges and agrees that Licensee shall not export, reexport, transfer, or release Software, Data, Web Services, or Documentation, in whole or in part, to (i) any U.S. embargoed country (or to a national or resident of any U.S. embargoed country); (ii) any person on the U.S. Treasury Department's list of Specially Designated Nationals; (iii) any person or entity on the U.S. Commerce Department's Table of Denial Orders; or (iv) any person or entity where such export, reexport, or provision violates any U.S. export control laws or regulations including, but not limited to, the terms of any export license or licensing provision and any amendments and supplemental additions to U.S. export laws as they may occur from time to time. 9.3 Taxes and Fees, Shipping Charges. License fees quoted to Licensee are exclusive of any and all taxes or fees, including, but not limited to, sales tax, use tax, value-added tax (VAT), customs, duties, or tariffs, and shipping and handling charges. 9.4 No Implied Waivers. The failure of either party to enforce any provision of this License Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision. 9.5 Severability. The parties agree that if any provision of this License Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make the intent of the language enforceable. 9.6 Successor and Assigns. Licensee shall not assign, sublicense, or transfer Licensee's rights or delegate its obligations under this License Agreement without ESRI's prior written consent, and any attempt to do so without consent shall be void. This License Agreement shall be binding upon the respective successors and assigns of the parties to this License Agreement. Notwithstanding, a government contractor that has acquired Software, Data, Web Services, or Documentation under contract to the government may assign this License Agreement to its government customer upon written notice to ESRI, provided the government customer assents to the terms of this License Agreement. 9.7 Survival of Terms. The provisions of Articles 2, 5, 6, 7, 8, and 9 of this License Agreement shall survive the expiration or termination of this License Agreement. 9.8 Equitable Relief. Either party agrees that any breach of this License Agreement may cause irreparable damage and that, in the event of such breach, in addition to any and all remedies at law, either party shall have the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or undertaking or proving injury as a condition for relief. 9.9 Government Licensee. The Software, Data, Web Services, and Documentation are commercial computer software, commercial data, commercial computer software documentation, and commercial Web Services. This License Agreement contains ESRI's commercial license terms and conditions for such items. The commercial license rights in this License Agreement strictly govern Licensee's use, reproduction, or disclosure of the Software, Data, Web Services, and Documentation. No other license terms or conditions shall apply unless expressly agreed in writing by ESRI and Licensee. ESRI Software source code is unpublished and all rights to the Software, Data, Web Services, and Documentation are reserved under copyright laws of the United States. In the event any court, arbitrator, or board holds that Licensee has greater rights to any portion of the Software, Data, Web Services, or Documentation under applicable public procurement law, such rights shall extend only to the portion affected, and use, duplication, or disclosure by Licensee is subject to restrictions as Page 5 of 6 E200M 6/08 provided in FAR 52.227-19(b) (DEC 2007), FAR 52.227-14 (ALT III) (DEC 2007), DFARS 252.227-7015 (NOV 1995), or NFS 1852.227-86 (DEC 1987), or the local, state, or foreign equivalent, as applicable. 9.10 Governing Law a. Licensees in the United States ofAmerica, Its Territories, and Outlying Areas. This License Agreement shall be governed by and construed in accordance with the laws of the State of Florida, in Miami -Dade County, without reference to conflict of laws principles, except that U.S. federal law shall govern in matters of intellectual property. 9.11 Maintenance. Maintenance for qualifying Software or Data consists of updates and other benefits such as access to technical support, specified in ESRI's most current applicable software maintenance policy. Page 6 of 6 E200M 6/08 a I ESR/TRAINING TERMS AND CONDITIONS ESRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 This Training Agreement ("Agreement") is between you (hereinafter "Client") and Environmental Systems Research Institute, Inc. ("ESRI"). Client acknowledges that Client has read and understood this Agreement and agrees to be bound by the terms and conditions hereof. Whereas, the Client wishes to arrange for training; and Whereas, ESRI agrees to conduct training courses pursuant to the terms and references contained herein. Now therefore, in consideration of the foregoing and mutual promises herein set forth, the parties hereby agree as follows: ARTICLE 1—TRAINING DESCRIPTION ESRI offers a set of instructor -led training and Client Coaching Services related to the use of its proprietary GIS software. Instructor -led training events occur at a Client's site, at an ESRI Learning Center, or via the Web. The ESRI software training course(s) to be conducted, location, and schedule dates are set forth in the ESRI Course Catalog located on ESRI's Training Web site (http://training.esri.com). All courses shall be conducted in substantial conformity with course descriptions outlined on the ESRI Training Web site. ESRI reserves the right to modify course content when necessary due to software technical capabilities or limitations. Client Coaching Services may be provided immediately before or immediately following an ESRI training course to familiarize Student(s) with the software or to review and practice course concepts with an instructor's guidance. ARTICLE 2—ESRI'S RESPONSIBILITIES ESRI shall provide an instructor qualified to conduct the course(s) as well as all necessary training materials sufficient for the number of registered participants (hereinafter "Student(s)"). ESRI will provide each Student with a course manual, where applicable. Learning center training class scheduled dates are confirmed by the Training Event Assistant approximately ten (10) business days prior to the class start date. Client Site classes are confirmed by the ESRI Training Event Assistant upon receipt of payment/order information and a completed Client Site Training Request Form. ARTICLE 3—CLIENT'S RESPONSIBILITIES ■ Client must ensure the protection of ESRI's copyrights and that neither Client nor any third party will copy or distribute any of ESRI's training material(s). ■ Client is not authorized to resell seat(s) to an ESRI training class, unless explicitly authorized in writing by ESRI. ■ Client is responsible for confirming that all registered Students meet the applicable minimum prerequisites for the applicable class set forth on ESRI's Training Web site. ■ Registrations must be submitted in advance and require a confirmed payment commitment at least seven (7) business days before the class start date. Any registrations without a confirmed payment will not receive a seat confirmation and shall be added to the waiting list only. ■ Client shall submit to the ESRI Training Event Assistant a list of Student names at least three (3) business days before the class start date for export license compliancy check purposes. ■ Student travel is Client's responsibility. ESRI assumes no responsibility for nonrefundable travel arrangement losses resulting from denial of a Student's participation due to U.S. government export licensing requirements, course scheduling changes, or cancellations. ■ Client must provide written notice to ESRI's Customer Service of any cancellation, rescheduling, or Student substitution requirements and receive confirmation of these change(s) prior to the class start date. ■ Client is responsible to ensure that it adheres to the course, facility, and equipment requirements for ESRI training as found at http://training.esri.com/gateway/index.cfin?fa=training0ptions.gateway. ■ Students may not use audio and/or video recording equipment within the classroom. ■ Where the ESRI Mobile Lab is utilized at a Client site, then the following shall apply: Page 1 of 6 E207M 8/27/09 — Client should immediately report any shipping damage upon receipt, to the Training Event Assistant. — Client shall keep the Mobile Lab in a secure, locked area between class sessions. — Client shall ensure no one except registered Students use the Mobile Lab equipment. — Client shall be responsible for any and all loss, damage, or theft to the Mobile Lab while in Client's possession. — Client warrants that it shall maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by Iaw. — All Mobile Lab equipment will be checked by the ESRI instructor following the completion of training. Any damage of Mobile Lab due to Student use, excluding normal wear and tear, shall be brought to the attention of Client by written notice. Client hereby agrees to be financially responsible for any repair of equipment required for such damage. — Client shall make the Mobile Lab available for freight pickup immediately on conclusion of the ESRI course(s). Client shall complete and submit an ESRI Client Site Training Request Form, as provided by the Training Event Assistant, no less than four (4) weeks prior to the start of any course. Final schedule is subject to mutual agreement. ■ Client shall supply all computer hardware for the training course. Computers must be platforms fully supported by ESRI. All computer hardware shall be configured with an appropriate release of an operating system to run the current release version of the ESRI required software. There shall be a minimum of one (1) computer and color monitor for every participant. Other peripheral devices including, but not limited to, digitizers and plotters/printers, as required by the training course being conducted, shall be Class I supported. ■ Client shall be responsible for providing one (1) high-resolution PC projector and screen as well as one (1) large writing board • Client shall limit the number of course participants to twelve (12) students per course. Additional students, up to a maximum of fifteen (15) may be added to some classes for an additional fee. ARTICLE 4—UNIQUE CLIENT SITE TERMS 4.1 Insurance. ESRI shall carry, at a minimum, the following coverage: a. Commercial general liability with minimum coverage limits of one million dollars ($1,000,000.00) per occurrence for bodily injury, including death, and property damage liability and two million dollars ($2,000,000.00) in the aggregate, to include the following: 1. Premises and operations 2. Blanket contractual liability 3. Broad form property damage 4. Independent contractors 5. Personal injury, with employee exclusion deleted 6. Completed operations b. Workers' compensation insurance, with waiver of subrogation, in an amount that complies with statutory limits; c. Auto Insurance (if applicable) providing coverage for all owned, hired, and non -owned exposures with a combined single limit of one million dollars ($1,000,000.00) and naming the City of Miami as an additional insured; d. Professional Liability/Errors and Omissions Coverage with limits of one million dollars (1,000,000.00) per claim, and one million dollars ($1,000,000.00) in the aggregate. ESRI shall provide the Client with written notice of cancellation or material change from the insurer no less than (30) days prior to any such cancellation or material change. Insurance companies/carriers authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies listed above. Furthermore, any insurance company/carrier retained by ESRI must be rated no less than "A" as to management, and no less than "Class V," as to financial strength according to the latest edition of Best's Insurance Guide, published by A.M. Best Company Oldwick, New Jersey, or its equivalent. All Policies and certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. Page 2 of 6 E207M 8/27/09 4.2 Indemnification. To the fullest extent permitted by law, and to the extent ESRI is responsible, ESRI agrees to defend, pay on behalf of, indemnify, and hold harmless the Client against any and all claims, demands, suits, or loss, including any and all outlay and expense connected therewith; attorneys fees; and any damages that may be asserted, claimed, or recovered against or from Client by reason of personal injury, including bodily injury or death, and property damage, including loss of use thereof, which arise out of or are a result of ESRI's training rendered by ESRI pursuant to the provisions of this Agreement while on Client's site. ESRI expressly assumes full responsibility for any and all damage caused to Client premises to the extent such damage is caused by ESRI's negligent acts, errors, or omissions. ESRI represents that its activities pursuant to the provisions of this Agreement will be performed and supervised by adequately trained and qualified personnel, and ESRI will observe, and cause its officers, employees, subcontractors, subconsultants, and others affiliated with ESRI to observe all applicable safety rules. For purposes of this Agreement, the term "ESRI" means and includes ESRI, its officers, agents, employees, subcontractors, and others affiliated with ESRI, and the term "Client" means and includes Client, its agents, employees, volunteers, and others working on its behalf. ARTICLE 5—UNIQUE CLIENT COACHING TERMS In the event Client Coaching Services are to be ordered, the following terms shall apply: Client shall not provide to ESRI any company confidential, proprietary, "personally identified information" ("I'll") (e.g., GLBA, HIPAA, CII from the U.S. Department of Homeland Security, etc.), classified, etc., data for use in the coaching session. Notwithstanding anything in this Agreement to the contrary, ESRI shall retain the right to refuse acceptance of any "nonpublic personal information" ("NPI") or "Customer Information" regardless of the form of disclosure. ESRI shall only accept receipt of information from Client that comports with the exceptions set forth in Subsections 4(B) and 4(C)(ii) of Section 509 of the Gramm -Leach -Bliley Act (P.L. 106-102) (15 U.S.C. Section 6809) and implementing regulations thereof. ARTICLE 6—SOFTWARE LICENSES The terms of the ESRI license agreement shall be applicable to all Client course Students and for ESRI Software, Data, and Documentation licensed for use in any training course to be conducted. For Client Site Training, temporary software licenses may be issued by ESRI where there is an insufficient number of software licenses available at the training facility. Client shall uninstall the temporary software licenses at the conclusion of the training course and return any media provided. ARTICLE 7—CANCELLATION AND RESCHEDULING POLICY Client may cancel or reschedule Student attendance in training up to three (3) working days before the scheduled class start date. In such event, Client will be responsible for any reasonable travel and shipping expenses incurred by ESRI. Where Client does not notify ESRI at least three (3) days prior to the scheduled training date, Client will be liable for the full payment of the Student enrollment or the entire training class. In the event that ESRI is unable to conduct the training on the scheduled date, Client will be notified at least three (3) business days before the scheduled date. If cancellation of a training event is necessary due to Force Majeure, as described in Article 11 below, the affected parry is released in full from the three (3) -business -day notification. The affected party will either reschedule the training or cancel the order without that affected party incurring any liability. Class Students may transfer to another class up to two (2) times at no additional charge. Subsequent transfers may be assessed an additional nonrefundable transfer fee. Student substitutions, when a Student's place in class is filled by another person from the same organization, is allowed provided that ESRI Customer Service is notified three (3) business days in advance of class start date. ARTICLE S—PAYMENT Accepted payment methods are found at W://traininQ.esri.com/aateway/index.cfm?fa=catalog.pgymentdetails. Page 3 of 6 E207M 8/27/09 Where payment is made in the form of a purchase order, ESRI shall invoice Client upon completion of each training course or immediately upon receipt of purchase order, as mutually agreed with the Client. CIient shall make payment no later than forty-five (45) days after receipt of invoice pursuant to the "Florida Local Government Prompt Payment Act," §218.70. - 218.79, . Audits conducted pursuant to this Act shall be in accordance with generally accepted auditing standards and established procedure and guidelines of the reviewing or auditing agency. Where the Client is invoiced prior to the scheduled class, then the Client has one (1) calendar year to consume the prepaid monies. Thereafter, all prepaid monies will be forfeited. ARTICLE 9—CONFIDENTIAL INFORMATION a. It may be necessary for ESRI or the Client to disclose to the other party certain confidential information under this Agreement. Each party shall use the confidential information described above only for exchanging information needed to provide the training contemplated by this Agreement. Within fourteen (14) days of completion of the training, each party shall return or destroy and provide written notification of destruction of the confidential information of the other party, subject to the provisions of Chapter 119, Florida Statutes. b. Notwithstanding any other provision of this Training Agreement, ESRI understands that the Licensee is subject to, and shall fully comply with, the provisions of Chapter 119, Florida Statutes. ARTICLE 10—RESERVATION OF OWNERSHIP AND GRANT OF LICENSE Except as specifically granted in this Agreement, ESRI or its licensors own and retain all right, title, and interest in software, documentation, and training materials. ARTICLE 11—FORCE MAJEURE If the performance of any obligation under this Agreement is prevented, restricted, or interfered with by reason of fire, flood, earthquake, explosion, or other casualty or accident; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, or power; war, threat of or actual terrorist act, cyberattack, or other violence; any law, order, proclamation, regulation, ordinance, demand, or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be provided a temporary extension for a period of time as may be reasonably necessary to allow for such delay, prevention, interference, or restriction. ARTICLE 12—WARRANTY Training will be provided in a manner consistent with the technical and professional standards of the industry. 12.1 Disclaimer of Warranties. WITH THE EXCEPTION OF THE LIMITED WARRANTY SET FORTH IN THIS ARTICLE, ESRI DISCLAIMS, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, AND NONINFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE DELIVERABLES ARE ERROR FREE. ARTICLE 13—LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY EXCEPT FOR INDEMNITY ASSOCIATED WITH CLIENT SITE TRAINING, IN NO EVENT SHALL ESRI BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR TRAINING; LOST PROFITS; LOST SALES; BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS COMMITMENTS; LOSS OF ANY GOODWILL; OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY, EVEN IF ESRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ESRPS TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID BY THE LICENSEE FOR THE PORTION OF THE TRAINING UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Page 4 of 6 E207M 8/27/09 ARTICLE 14—EXPORT CONTROL REGULATIONS ESRI's technology is subject to U.S. export control laws and regulations—ESRI's software, data, documentation, training materials, and any underlying information or technology may not be exported, reexported, or provided in whole or in part to (i) any country to which the United States has embargoed goods; (ii) any person on the U.S. Treasury Department's list of Specially Designated Nationals; (iii) any person or entity on the U.S. Commerce Department's Table of Denial Orders; or (iv) any person or entity where such export, reexport, or provision violates any U.S. export control law or regulation. ARTICLE 15 --TAXES Training provided is quoted exclusive of all state, local, value-added, or other taxes; customs; or duties or other charges (other than income taxes payable by ESRI). In the event such taxes and/or charges become applicable to ESRI's training or deliverables, Licensee shall pay any such applicable tax upon receipt of written notice that such tax(es) is/are due. ARTICLE 16—UCC INAPPLICABILITY Training provided under this Agreement will not be governed by the Uniform Commercial Code (UCC) and will not be deemed "goods" within the definition of the UCC. ARTICLE 17—GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the state in which training is being held without reference to its conflict of laws principles. Page 5 of 6 E207M 8/27/09 ESR! EXHIBIT 1 SCOPE OF USE (E300 10/09) ESRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 The scope of use for the ESRI Software, Data, Web Services, and Documentation identified below is described in the applicable footnotes identified in parentheses. Desktop GIS ■ ArcReader (20 and 25) ■ ArcView (1 or 2 and 25 and 44) ■ ArcEditor (1 or 2 and 25, 26, and 44) ■ ArcInfo (2, 25, 26, and 44) ■ ArcGIS Desktop Extensions (7) ■ ArcView 3.x and Extensions (1, 7, and 17) Server GIS ■ ArcGIS Server and Extensions - Workgroup (either 3 or 5 and 8, 9, 25, 28, 29, 30, 32, 38, 39, 40, and 45) - Enterprise (either 3, 4, or 5 and 8, 9, 25, 27, 31, 38, 39, 40, and 45) - ArcGIS Server Geoportal Extension (either 4 or 5 and 7, 47, and 52) ■ ArcIMS - ArcIMS and Extensions (either 3, 4, or 5 and 8, 10, and 31) - ArcIMS ArcMap Server (either 3, 4, or 5 and 31) ■ Tracking Server (either 4 or 5 and 31) ■ ArcGIS Server Image Extension (either 3, 4, or 5 and 8, 31, and 42) - ArcGIS Server Image Extension Service Editor (1) ■ RouteMAP IMS (either 3, 4, or 5 and 8, 25, and 31) ■ ESRI Business Analyst Server (5, 8, 9, 21, 25, 28, 31, 39, 40, 45, and 48) Mobile GIS ■ ArcPad (1, 12, 13, and 25) ■ ArcPad Application Builder (1 and 25) ■ ArcGIS Mobile Deployments (1, 15, 16, and 25) Developer GIS ■ ESRI Developer Network (EDN) Software, Web Services, and Data (6, 7, 24, 25, 26, 34, 35, and 36) ■ ArcGIS Engine Developer Kit and Extensions (1 and 14, 15, 22, 25, 26, and 43) ■ ArcGIS Engine Runtime and Extensions (1, 15, 22, 25, and 26) ■ MapObjects-Windows Edition (1, 14, 15, 16, and 18) ■ MapObjects-Java Edition (1, 5, 8, 15, 18, and 19) ■ MapObjects LT (1, 14, and 16) ■ NetEngine (1, 5, and 15) ■ NetEngine Internet (5) ■ ESRI Business Analyst Server Developer (6, 25, 35, and 51) GIS Viewers and Connectors ■ MapIt (11, 25, 31, 35, 49, and 50) • ArcExplorer-Java and Windows Editions (20 and 25) • ArcGIS Explorer (20 and 25) ■ ArcGIS for AutoCAD (1, 20, and 25) ■ Geoportal Clients for ArcGIS (7, 20, and 52) Business GIS ■ ESRI Business Analyst (1 or 2 and 25, 45, and 48) ■ BusincssMAP (1 and 25) ■ ArcLogistics (either I or 2 and 25) ■ ArcLogistics Connect (6, 20, 25, 34, 35, and 46) ■ ArcLogistics Server (5, 8, 9, 21, 25, 28, 39, 40, and 45) ■ ArcLogistics Navigator (1, 25, and 46) • ArcLogistics Navigator Deployments (1, 15, and 16) Cartographic Production ■ Maplex (1) ■ Production Line Tool Set (PLTS) for ArcGIS, GIS Data Reviewer, Map Production System -Atlas, Job Tracking for ArcGIS (JTX) (either 1 or 2), Job Tracking for ArcGIS Server (either 4 or 5 and 7) Web Services ■ ArcGIS Online (6, 25, 33, 34, and 35) Data ■ ESRI Data & Maps (either 1 or 5 and 23 and 37) ■ ESRI Data (either 1, 2, or 5 and 25 and 48) - Demographic, Consumer Spending, Market Potential, Retail MarketPlace, Business, Traffic, Shopping Center, Cable Boundaries, Banking, and Crime ■ Tapestry Segmentation (either 1, 2, or 5 and 21 and 48) ■ Address Coder (either 1, 2, or 5 and 21, 22, 25, and 48) ■ Sourcebook -America (1 and 21) ■ ArcGIS Data Appliance (6, 23, 25, and 41) ■ StreetMap Premium (either 1, 2, 4, or 5 and 6, 23, and 25) Page 1 of 4 E300 10/09 1. "Single Use License." Licensee may permit a single authorized end user to install and use the Software, Data, and Documentation on a single computer for use by that end user on the computer on which the Software is installed. Remote access is not permitted. Licensee may permit the single authorized end user to make a second copy for end user's exclusive use on a portable- computer as long as only one (1) copy of the Software, Data, and Documentation is in use at any one (1) time. 2. "Concurrent Use License." Licensee may install and use the Software, Data, and Documentation on computer(s) on a network, but the number of simultaneous users may not exceed the number of licenses acquired. 3. "Development Server License." Licensee may install and use the Software on a single computer to design and build applications that interface with or utilize server Software as described in the Documentation. 4. "Staging Server License." In addition to the Development Server License rights, Licensee may use and install the Software for the following purposes: user acceptance testing, performance testing, load testing of other third -party software, staging new commercial data updates, and training activities. 5. "Deployment Server License." In addition to the Staging Server License rights, Licensee may install and use the Software or Data to provide services to multiple users on the same or other computer(s). 6. Provided only as a Term License. 7. Extensions to Software programs follow the same scope of use as that granted for the corresponding Software programs. 8. The administration tools for the Software may be copied and redistributed throughout Licensee's organization. 9. User -developed ArcGIS Server administration tools may be copied throughout Licensee's organization, but the ArcCatalog application (found in ArcGIS Desktop) may not be copied. 10. The ArCIMS license includes the right to deploy MapObjects—Windows Edition applications on the Internet or intranet. Licensee shall not develop client/server solutions with the ArcIMS Java Archive (JAR) files without a license for the MapObjects—Java Edition Developer Kit. 11. Licensee may install and use the Software to provide services to multiple users on the same or other computer(s). The Software is licensed per server. The licensed server is the server on which Licensee installs the Spatial Data Service. 12. ArcPad SOFTWARE IS NOT LICENSED FOR NAVIGATIONAL USE. 13. "Dual Use License" means the. Software may be installed on a desktop computer and used simultaneously with either a personal digital assistant (PDA) or handheld mobile computer as long as the Software is only used by a single individual at any one (1) time. 14. Developers must include the following attribution with any deployed MapObjects application: "Portions of this computer program are owned by LizardTech, Inc., and are Copyright © 1995-2002 LizardTech, Inc., and/or the University of California. All rights reserved. U.S. Patent No. 5,710,835." 15. Deployment licenses for desktop or Internet application(s) may be subject to payment of additional license fees. 16. Licensee may deliver applications to its sublicensee(s) provided Licensee uses a written sublicense agreement that protects ESRI's rights in its Software, Data, Web Services, and Documentation to the same extent as the ESRI License Agreement including, but not limited to, the following terms: a. Sublicensee may not reverse engineer, decompile, or disassemble the ESRI Software, Data, Web Services, or Documentation, except to the extent permitted by applicable law; copy for commercial use; transfer; or assign its rights under the license grant; b. Sublicensee may not use any ESRI Software, Data, Web Services, or Documentation, in whole or in part, separate from Licensee's executable application; and c. Third -party dependent or required components are redistributable subject to permission from the owner or author. 17. Licensee may use Business Objects Crystal Reports software only with the ArcVibw 3.x Software with which it was acquired and subject to the Crystal Reports License Agreement available on the media. Licensee may not use a software program or system to cache or queue report requests. 18. The deployment license is per application per computer. 19. The MapObjects—Java Edition contains Java Archive files, which indicate they are authentic ESRI-certificated files when used over the Internet. Licensee shall not use ESRI certification or reference ESRI as a source of trusted content in any modified MapObjects Java Archive files. Licensee may deploy the unmodified Java class ESRI certified libraries as an integral part of the Licensee's application(s). 20. Licensee may reproduce and deploy the Software provided all the following occur: (a) The Software is reproduced and deployed in its entirety; (b) a license agreement accompanies each copy of the Software that protects the Software to the same extent as the ESRI License Agreement, and the recipient agrees to be bound by the terms and conditions of the license agreement; (c) all copyright and trademark attributions/notices are reproduced; and (d) there is no charge or fee attributable to the use of the Software. Page 2 of 4 E300 10/09 1. Licensee shall nut withhold any substantial right (e.g., extension of credit) from any individual based solely.on the individual's place of residence, as profiled in the Tapestry Segmentation system. 22. (a) ArcGIS Engine Runtime licenses shall not be used for Internet and Server development and deployment. (b) An end user must license either ArcGIS Engine Runtime Software or other ArcGIS Desktop Software (ArcView, ArcEditor, or Arclnfo) to obtain the right to run an ArcGIS Engine application on one (1) computer. (c) The ArcGiS Engine Runtime extensions shall not be used in combination with ArcGIS Desktop Software to run ArcGIS Engine applications. A single user can have multiple applications installed on one (1) computer for use only by that end user. 23. Licensee may redistribute the Data as described in the Redistribution Rights Matrix available at http:/,Iwww.esri.com/ lgg@E, in the Help system or in supporting metadata files, subject to the specific attribution descriptions and requirements for the dataset accessed. 24. EDN Software, Web Services, and Data may only be used by one (1) named developer per subscription solely for the purposes of research, development, testing, and demonstration of a prototype application. EDN Software and Data may be installed on multiple computers for use by any named EDN developer. 25. Use of included third-party owned data that has been accessed by Licensee through ESRI's Web-site, or otherwise delivered to Licensee pursuant to Licensee's Master License Agreement No. 2009)! IP with ESRI, shall be subject to the Use of Data Restrictions found at http://www.esri.com/ legal/ for the specific Data accessed. The Use of Data Restrictions may be modified by ESRI from time to time. If a modification is unacceptable to Licensee, Licensee may cancel a subscription upon written notice to ESRI, or discontinue use of the Data or Web Services, as applicable. If Licensee continues to use the Data or Web Services, Licensee will be deemed to have accepted the modification. No license is needed for, and Licensee shall have the right to use, the ArcGIS APIs (including JavaScript" , Adobe® Flex®, and Microsoft® SilverlightT`"/WPF'm). 26, An ArcSDE Personal Edition geodatabase is restricted to four (4) gigabytes of Licensee data. 27. ArcGIS Server Web ADF Runtime Software may not be deployed independently of Licensee's ArcGIS Server Enterprise configuration. 28. Limited to ten (10) concurrent end users of applications other than ArcGIS Server. This restriction includes use of ArcGIS Desktop products, ArcGIS Engine products, and third -party applications that connect directly to any ArcGIS Server geodatabase. There are no limitations on the number of connections from Web applications. 29. Can only be used with SQL Server 2005/2008 Express. 30. Restricted to a;maximum total of four (4) gigabytes of Licensee data. 31. Redundant Software installation(s) for failover operations may be implemented during the period the primary site is nonoperationaL The redundant Software installation(s) shall remain dormant, except for system maintenance and updating of databases, while the primary site or any other redundant site is operational. 32. No redundant Software installation is permitted. 33, a. ArcGIS Online may only be utilized in conjunction with the following Software: i. ArcGIS Desktop ii. ArcGIS Server (including the Web ADF) iii. ArcGIS Mobile iv. ArcGIS Explorer v. ESRI Business Analyst Server Developer vi. MapIt vii. The ArcGIS APIs (including JavaScriptT', Adobe® Flex®, and Microsofto SilverlightT"'/WPF"') viii. ArcLogistics Connect b. Licensee's access and use of ArcGIS Online Standard Services shall be subject to Licensee's consent to the terms and conditions of ESRI Web Site and Service Terms of Use Agreement (G-577) found at http://www.esri.com/ le 9k c. ArcGIS Desktop Licensees that are current on maintenance may access and use Microsoft2' Bing MapsTm subject to Licensee's consent to the terms and conditions of Bing Maps for ArcGIS Desktop Users Services Agreement (G-600) found at http://www,esri.com/legal/. 34. Licensee's organization is limited to the number of specified credits, transactions, geography, or number of users as described in the online product description. 35. Licensed end users shall not share the client -side data cache derived from ArcGIS Online with other licensed end users or third parties. 36. Licensee may not download or store resulting data or information except for results derived from using AreWeb Services Address Manager. Page 3 of 4 E300 10/09 3.7. Data provided with StreetMap USA may be used for mapping, geocoding, and routing purposes but is not licensed for dynamic routing purposes. For instance, StreetMap USA may not be used to alert a user about upcoming maneuvers (such as warning of an upcoming turn) or calculating an alternate route if a turn is missed 38. The ArcGIS Server 3D extension included with ArcGIS Server Standard (Workgroup or Enterprise) may only be used for generating globe data cache(s) or publishing a globe document as an ArcGIS Globe Service. No other use of the ArcGIS Server 3D extension Software is permitted with ArcGIS Server Standard: 39. Any editing functionality included with ArcGIS Server is not permitted for use with ArcGIS Server Basic (Workgroup or Enterprise). 40. Geospatial Enterprise JavaBeans (EJB) provided with ArcGIS Server (Workgroup or Enterprise) are permitted for use only with ArcGIS Server Advanced. 41. Licensee may only use Data from a single state with the Single State version of ArcGIS Data Appliance. This restriction applies to a large-scale (i.e., scale levels below 1:100,000) street map, transportation layer, boundaries and places layer, and one (1) -meter or better resolution imagery included in the USA Collection. This restriction does not apply to the small-scale (i.e., scale levels above 1:100,000) maps provided in the World Collection, which are intended for display at global and regional scales. 42. Licensee has the right to one (1) desktop deployment of the ArcGIS Server Image extension Service Editor for every four (4) cores of ArcGIS Server Image extension that is licensed. Additional Service Editor desktop deployments can be licensed for an additional fee. 43. Licensee may develop an unlimited number of applications on a single computer and deliver the applications to end users with or without the Engine Runtime Software. 44. For any operating system environment in which Licensee runs instances of the Concurrent Use license management software, Licensee may run up to the same number of passive failover instances of the Concurrent Use license management software in a separate operating system environment for temporary failover support. 45. Data licensed with ESRI Business Analyst and ESRI Business Analyst Server are restricted to use with the respective Business Analyst extension and are not for general use with ArcGIS Desktop or ArcGIS Server Software. 46. Licensee should not follow any route suggestions that appear to be hazardous, unsafe, or illegal. Licensee assumes all risk of using this navigation Software. 47. Licensee may only use the Software in conjunction with a minimum of ArcGIS Server Standard. 48. Licensee may include reports and maps created from the Software or Data in hard -copy or read-only formats for presentation packages or marketing studies for subsidiaries and customers. The total content of the ESRI reports and maps must be less than twenty percent (20%) of Licensee's total content of the presentation package or marketing study. Full, complete, stand-alone reports or maps created from the Software or Data and not part of a presentation package or marketing study cannot be resold, sublicensed, or otherwise transferred without prior, written permission of ESRI. Licensee's third -party customer may only receive reports and maps generated by Licensee and may only use the maps and reports received from Licensee for internal purposes. In no case shall Licensee redistribute the Data in digital formats. 49. ESRI MapIt Silverlight Web or WPF applications may not be deployed independent of Licensee's MapIt deployment configuration. 50. Licensee has the right to one (1) desktop deployment of the Spatial Data Assistant for each ESRI MapIt Server License. 51. ESRI Business Analyst Server Developer and Data may only be installed on one (1) server per license solely for the purposes of research, development, testing, and demonstration of a prototype application. 52. Source code is the intellectual property of ESRI. Licensee's access to and use of any source code file identified as "Software" in a README file or at hgp://www.esri.com/legal/ should be treated as a trade secret for Licensee's own internal use only and not for further redistribution or access by unlicensed third parties. Licensee shall not modify the Software, Documentation, Data, or source code to incorporate, embed, link, or otherwise include any code, libraries, or data licensed or distributed under an open source licensing or distribution models similar to Free Software Foundation's GNU's General Public License (GPL) or GPL-compliant licenses, including, without limitation, the Artistic License (e.g., Per]), the Mozilla Public License, the Netscape Public License, and the Sun Community or Industry Standards License, that could require a user to make its proprietary source code available to a requesting third party. Page 4 of 4 E300 10/09 w i ESRI ESRI, 380 New York St., Redlands, CA 92373-8100 USA -TEL 909-793-2853 • FAX 909-793-5953 ARTICLE I—DEFINITIONS All definitions in other parts of the Master Purchase Agreement shall have the same meaning in this ESRI MPA Terms and Conditions. In addition, the following definitions apply to this MPA: a. "License Agreement" means the General License Terms and Conditions (E200) and Exhibit 1, Scope of Use (E300). b "Licensee," "Authorized Entity" or "Customer" means the City of Miami. c. "Force Majeure Event" shall mean an event that satisfies each of the following conditions: (1) the failure or delay could not have been prevented by reasonable precautions, and cannot reasonably be circumvented by the non- performing party through the use of alternate sources, work -around plans, or other means; and (2) the failure or delay is caused, directly or indirectly, by reason of fire, other casualty or accident, or natural disaster; strikes or labor disputes; inability to procure raw materials, equipment, power or supplies; war, terrorism or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental agency or intergovernmental body other than a party hereto; . d. "License Manager" means the nondestructive license management software program or hardware key, or similar copy protection mechanism, which controls the distribution of the licensed number of Software copies to requesting end user(s) of Licensee. ARTICLE 2—TERM OF AGREEMENT Licensee's right to purchase under this Agreement shall remain in effect for five (5) years from the effective date unless terminated earlier as set forth in Article 5—Termination; Cancellation. The term may be extended upon mutual written agreement. The term of any Software, Data, or Web Services licenses ordered through this Agreement shall be as stated in the License Agreement. ESRI may elect to not renew this Agreement should total orders for licenses, training, consulting, or custom application development not exceed fifty thousand dollars ($50,000.00) per year or one hundred thousand dollars ($100,000.00) for any two (2) -year period. ARTICLE 3—PRODUCT OFFERINGS 3.1 Discontinued Items. ESRI may, at its sole discretion, discontinue offering any Software, Data, Web Services, Documentation, or other product and services included in this Agreement at any time upon reasonable written notice. 3.2 New Items. ESRI may, at its sole discretion, offer new Software, Data, Web Services, Documentation, hardware, services, or larger quantity discount pricing by providing written notice. ESRI may require additional license terms prior to use of new Software, Data, Web Services, Documentation, hardware, or services. Such notice shall become part of this Agreement upon (i) ordering Software, Data, Documentation, Web Services, hardware, or services covered by the notice or (ii) thirty (30) days after Licensee's receipt of notice, whichever is sooner. Licensee may object in writing to the terms of the notice prior to the occurrence of (i) or (ii). Any objections or changes to the terms in the notice shall require written agreement of both parties. ARTICLE 4 --GRANT OF LICENSE AND SCOPE OF USE The license grant and permitted uses specified in Article 3 and Article 4 of the License Agreement are restricted to use within the United States of America, its possessions, and territories. For Internet mapping Software, the server must be located within the United States of America, its possessions, and territories. Page I of 7 E500 11/06 ARTICLE 5—TERMINATION; CANCELLATION 5.1 Termination a. Termination for Convenience. This Agreement may be terminated by either party upon forty-five (45) days' written notice. ESRI, at its sole election, may terminate the right of Licensee to participate in this Agreement in accordance with this provision. b. Termination for Breach. Without prejudice to any other right or remedy available, this Agreement may be terminated for breach provided the breaching party is given forty-five days' written notice to cure the breach. Termination of this Agreement shall be effective upon written notice to Licensee if Licensee discloses any trade secret or other information proprietary to ESRI in breach of this Agreement if caused by the gross negligence or willful misconduct of Licensee or any of its employees. c. Licensee Obligations Upon Termination. On termination of this Agreement, all accounts and payments will be processed according to financial arrangements set forth herein for performance rendered to the date of termination. After termination, Licensee shall no longer be permitted to place orders under this Agreement. . d. License Survival. Upon expiration of this Agreement or termination of this Agreement for the convenience of Licensee, Licensee may continue to retain and use such licensed Software, Data, Web Services, and Documentation in accordance with the License Agreement. Licensee may then directly and separately contract for Software maintenance. 5.2 Cancellation of an Order. Purchase orders, other than for the initial purchase, may be canceled by Licensee in whole or in part, upon forty-five (45) days' written notice to ESRI. There will be no cancellation charge for canceled Software, Data, or Documentation unless such Software, Data, or Documentation has been delivered. If the Software, Data, or Documentation has been shipped, the cancellation will require Licensee payment of return shipping costs. Licensee has the right to cancel hardware purchases forty-five (45) days prior to scheduled delivery without cost. After hardware delivery or within forty- five (45) days of scheduled delivery, cancellation of the hardware purchase is subject to a manufacturer cancellation charge not to exceed thirty-five percent (35%) of hardware list price. There are no refunds for cancellation of a subscription or maintenance if the term for the subscription or maintenance has started. ARTICLE 6—FUNDING; NO MINIMUM PURCHASE 6.1 Funding. Where the financial obligations of Licensee payable after the current fiscal year are contingent upon funds being appropriated, budgeted, or otherwise made available, and the funds are not appropriated or otherwise made available, this Agreement may be terminated as set forth in Article 5. 6.2 No Minimum Purchase. Licensee does not guarantee to purchase any certain quantity under this Agreement. ARTICLE 7—ORDERS 7.1 Licensee Purchase Orders. Licensee shall issue purchase orders to ESRI for Software, Data, Web Services, Documentation, services, or hardware based on the pricing specified in this Agreement. Licensee should confirm hardware pricing and model availability with ESRI prior to placement of a purchase order. The terms and conditions of this Agreement shall govern all orders issued by Licensee. Any additional or different terms included with an order shall require approval by ESRI via a written modification to this Agreement to be binding. 7.2 Purchase Order Requirements. The following information shall be included in each purchase order: a. Name or identification of Licensee, place of delivery, and the end user name and contact information b. Purchase order number c. Date delivery is requested (minimum thirty [30] days after ESRI receipt of order) d. Primary site for maintenance if primary maintenance is not ordered e. Quantity, description, and unit price f. On the face of the purchase order, print the following statement: "Subject to Master Purchase Agreement No. 2009MPA4448." 7.3 Additional Quotes. Licensee may request a quote for any new or unlisted Software, Data, Web Services, services, or hardware and issue a purchase order under this Agreement. ESRI may require additional license terms for use of the new or unlisted Software, Data, Web Services, services, or hardware. 7.4 Page 2 of 7 E500 11/06 Registration/Keycode Request. To activate Software subject to a License Manager, Licensee may be required to register or obtain a keycode through ESRI's Web site at myESRI.com or through ESRI's Customer Service Department. ARTICLE 8—ESRI AUTHORIZED RESELLER ORDERS 8.1 Criteria to Order from Reseller. Licensee may purchase certain Software from an authorized ESRI reseller under the terms of this Agreement if the following requirements are satisfied: a. The quotation for Software and the selection of the ESRI reseller must comply with all applicable state and local public procurement laws and regulations; b. The ESRI reseller must be a member of the ESRI Business Partner Program in good standing at the time the ESRI reseller places the order with ESRI and be authorized to provide the Software ordered as defined at ESRI Web site http://gis.esri.com/partners/index.html. Select "Resellers" to view the authorized resellers and the Software they are authorized to provide; and c. The Licensee purchase order forwarded by the reseller to ESRI must list the information requested in section 7.2, the ESRI reseller name, and the Software MPA pricing [Reseller must use MPA pricing to use this Agreement.]. 8.2 Order Process. If all conditions of sale under this Agreement are met, ESRI will accept the order and the authorized reseller will receive a sales commission. ESRI will deliver the Software directly to Licensee, invoice, and receive payment for any such order. If ESRI does not accept the order, Licensee may enter into a direct transaction with the ESRI reseller, and the order will not be processed under this Agreement. 8.3 ESRI Reseller List. Upon request, the ESRI regional office will provide Licensee with a list of authorized ESRI resellers in good standing that do business in Licensee's state. ARTICLE 9—PRICING 9.1 Pricing. ESRI will provide Software, Data, Web Services, Documentation, maintenance, and support specified at the prices incorporated into this Agreement. The specified prices stated in the incorporated ESRI Master Agreement Price List are exclusive of shipping and installation. All prices incorporated into the ESRI Master Agreement Price List, Version E407 3Q09 shall not be increased for a period of five (5) years following the execution of this Agreement. 9.2 Hardware. Hardware purchases will be processed in accordance with procedures in Article 12, Hardware Purchases. ESRI is subject to hardware vendors' price fluctuations; however, ESRI shall provide a firm quote for hardware valid for sixty (60) to ninety (90) days upon written request. Licensee shall confirm delivery dates with ESRI's hardware manager prior to placing orders. 9.3 Custom Software and Application Services. Custom software and application services are available on a time and materials or firm fixed price basis via a signed task order. The Customer Software, Technical Data, and Assistance License Addendum (E600M) and the Time and Material Rate Schedule (J-7264-a/BD) together comprise the applicable terms, staffing, and hourly labor rates (hourly rates applicable only for time and materials projects) for any such work to be performed under this Agreement. Labor rates are subject to annual escalation not to exceed five percent (5%) in January of each year. The scope of work and any additional terms are subject to mutual agreement in the task order. Information and arrangements regarding Custom Software and Application Services are available from the Implementation Services Program Manager, at 909-793-2853, ext. 1546. 9.4 Training Services. Training will be provided in accordance with the policies defined under "Education and Training" at www.esri.com and the ESRI Client Site Training Terms and Conditions (E207M) incorporated herein. Training prices are subject to annual escalation, not to exceed five percent (5 %) in January of each year. 9.5 Freight. Freight terms are FOB Origin with freight charges prepaid and added to the invoice. Standard shipping is by two (2) -day air via UPS or equivalent carrier. Expedited express delivery for Software can be arranged. Shipping and handling charges may be confirmed in advance; the ESRI invoicing program will incorporate the current fees automatically. There may be periodic changes due to fluctuations in the transportation industry fees. 9.6 (Add Reference to pricing for Services.)' Page 3 of 7 E500 11/06 ARTICLE 10—MAINTENANCE ESRI will provide maintenance, comprised of updates and technical support as specified in the Iatest software maintenance program found on the ESRI Web site at http://esri.com/legal/maintenance. Maintenance is generally offered on an annual basis. Upon expiration of any complimentary maintenance year or any subsequent maintenance term, Licensee may issue a purchase order under this Agreement for renewal of maintenance at the terms and pricing then in effect. Upon acceptance of an ESRI quotation, the purchase order shall be issued in advance or no later than concurrent with the present maintenance term. If maintenance lapses, Licensee must pay back maintenance fees to reinstate maintenance. Should there be a lapse in maintenance coverage, and at some later date the Licensee chooses to reinstate maintenance, Licensee shall pay maintenance fees for the lapsed period, not to exceed a maximum of two (2) prior years, plus one (1) year's maintenance fees in advance. ARTICLE 11—TERMS OF COMPENSATION AND ACCEPTANCE 11.1 Terms of Compensation. Software, Data, Documentation, and hardware will be invoiced one -hundred percent (100%) upon shipment. Web Services will be invoiced one -hundred percent (100%) upon issuance of access codes. Software and hardware installation and training services, as applicable, will be invoiced upon completion. Licensee agrees to pay each invoice in full within forty-five (45) days of receipt of a valid invoice pursuant to the Florida Local Government Prompt Payment Act. Audits conducted pursuant to this Act shall be in accordance with generally accepted auditing standards and established procedure and guidelines of the reviewing or auditing agency. 11.2 Acceptance. Unless rejected in writing, acceptance of any shipment of Software, Data, Documentation, and hardware shall be presumed to have occurred fifteen (15) days after shipment by ESRI. Acceptance of Web Services occurs upon issuance of access codes. If ESRI installation is ordered, acceptance occurs upon completion of ESRI Software installation and testing, unless rejected in writing. 11.3 Rejection of Order. ESRI may reject any purchase order if Licensee fails or refuses to pay any license or service fee due and payable. ARTICLE 12—HARDWARE PURCHASES 12.1 Hardware Purchase Procedures. ESRI is a value-added hardware reseller. Licensee acknowledges that ESRI is restricted from selling hardware to any user who has not licensed Software. ESRI shall provide hardware prices by written quotation prior to issuance of an order. ESRI will order hardware upon receipt of Licensee's purchase order. 12.2 Responsibilities a. Licensee Responsibilities. Licensee shall designate a person to act as its system administrator. Prior to the start date for installation, Licensee shall, at its own expense, prepare the designated site in accordance with the hardware manufacturer's or third party vendor's ("Vendor's") specifications. These preparations shall include installation of appropriate electrical wiring, air conditioning, heating, humidity control, lighting, and space for hardware components. b. ESRI Responsibilities. ESRI shall coordinate the shipping, insurance, and delivery of the various hardware components including communication with Licensee regarding appropriate logistics. 12.3 Manufacturer's Warranty and Infringement Indemnity. ESRI will pass through any hardware warranty and infringement indemnity from each respective manufacturer directly to Licensee. The Vendor's hardware is not designed for use in fail-safe environments or mission -critical applications such as, but not limited to, running nuclear operations, airport/aircraft control systems, or 911 emergency and life support response systems. THE WARRANTIES AND INDEMNITIES SET FORTH IN THIS SECTION 12.3 FOR HARDWARE ARE IN LIEU OF, AND THIS AGREEMENT EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT THE HARDWARE IS FAULT -FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; AND (ii) ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, SYSTEM INTEGRATION, AND NONINFRINGEMENT. Page 4 of 7 E500 11/06 ARTICLE 13—GENERAL PROVISIONS 13.1 Order of Precedence. The General Provisions and Limitations of Liability provisions of the License Agreement shall apply to the entire Agreement unless specifically stated otherwise and are supplemented by the provisions set forth in this Article 13. In the event of a conflict between the terms of documents in this Agreement, the documents will have the following precedence: (i) ESRI MPA Terms and Conditions (E500), (ii) the License Agreement, (E200) (iii) the Customer Software, Technical Data, and Assistance License Addendum (E600), and (iv) the ESRI Client Site Training Terms and Conditions (E207). 13.2 Notice. Notice required or contemplated by either party must be delivered in person or by courier, express mail, facsimile, or postage -prepaid certified or registered airmail addressed to the party for whom it is intended at the address specified herein. Either party may change its address by giving prompt written notice to the other party of the change. City Manager City Hall 3500 Pan American Drive Miami, FL 33133 With copy to: Chief Information Officer Miami Riverside Center 444 S.W. 2nd Ave Miami, FL 33130 City Attorney Miami Riverside Center 444 S.W. 2nd Ave Suite 945 Miami, FL 33130 Manager of Contracts & Legal Services ESRI 380 New York Street Redlands, CA 92373-8100 Phone: 909-793-2853 Fax: 909-307-3020 CITY OF MIAMI STATUTORY AND INSURANCE PROVISIONS 13.3 PUBLIC RECORDS .. Notwithstanding any other provision of this ESRI MPA Terms and Conditions , ESRI understands that the Licensee is subject to, and shall fully comply with, the provisions of Chapter 119, Florida Statutes. 13.4 COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS ESRI understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. Licensee and ESRI agree to comply with and observe all applicable laws, codes and ordinances as they may be amended from time to time. 13.5 NON-DISCRIMINATION ESRI warrants to the Licensee that ESRI does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with ESRFs performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. ESRI further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 13.6 INDEPENDENT CONTRACTOR ESRI is an independent contractor and not an agent or employee of the Licensee. Accordingly, ESRI shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the Licensee, nor any rights generally afforded classified or unclassified employees. ESRI further understands that Florida Workers' Compensation benefits available to employees of the Licensee are not available to ESRI, and agrees to provide workers' compensation insurance for any employee or agent of ESRI rendering services to the Licensee under this Agreement. Page 5 of 7 E500 11/06 13.7 AMERICANS WITH DISABILITIES ACT Licensee shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA"), including Titles I and II of the ADA (regarding non-discrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, Licensee shall take affirmative steps to ensure non-discrimination in employment of disabled persons. 13.8 FORCE MAJEURE Neither party will be liable for any failure or delay in the performance of its obligations under this Agreement (and the failure or delay will not be deemed a default of this Agreement or grounds for termination) based upon a Force Majeure Event. Upon the occurrence of a Force Majeure Event the non-performing party will be excused from any further performance of those obligations under this Agreement affected by the Force Majeure Event for as long as (a) the Force Majeure Event continues; and (b) the non-performing party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay. Upon the occurrence of a Force Majeure Event, the non-performing party will immediately notify the other party by telephone (to be confirmed by written notice within two (2) business days of the failure or delay) of the occurrence of a Force Majeure Event and will describe in reasonable detail the nature of the Force Majeure Event. 13.9 GOVERNING LAW The Master Purchase Agreement and this MPA Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Florida without reference to conflict of laws principles, except that U.S. federal law shall govern in matters of intellectual property. 13.10 INSURANCE REQUIREMENTS FOR PROFESSIONAL SERVICES AGREEMENTS I. Commercial General Liability (Primary & Non Contributory) Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 Endorsements Required City of Miami included as an additional insured Contingent Liability (Independent Contractors Coverage) Contractual Liability Waiver of Subrogation Premises & Operations Liability II. Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 Endorsements Required City of Miami included as an Additional Insured Employees as insured's Page 6 of 7 E500 11/06 III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit V. Professional Liability/Error's & Omissions A. Limits of Liability Bodily Injury and Property Damage Liability Each Claim $1,000,000 Aggregate $1,000,000 The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change. * Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. Page 7 of 7 E500 11/06 • ESRIESRI WEB SITE AND SERVICE Edi ESRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 USE OF SERVICES IN ANY MANNER, INCLUDING MERELY BROWSING OR ACCESSING THIS ESRI WEB SITE, CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO THESE TERMS OF USE. PLEASE READ THESE TERMS OF USE THOROUGHLY AND MAKE SURE YOU UNDERSTAND THEM BEFORE ACCEPTING THEM. IF YOU DO NOT ACCEPT THESE TERMS OF USE OR DO NOT WISH TO BE BOUND BY THEM, CEASE ACCESS AND USE OF THIS WEB SITE AND SERVICES IMMEDIATELY. ESRI WILL ONLY PERMIT YOU TO ACCESS AND USE OF THE ESRI WEB SITES UPON ACCEPTANCE OF THESE TERMS OF USE. These Terms of Use comprise a legal agreement between the City of Miami (the "Licensee") and ESRI. Unless otherwise agreed to in writing, the terms and conditions provided herein govern the Licensee's access and use of Services offered from ESRI Web sites whether used in connection with other products or services, or independent of them. Additional terms and conditions may apply and will be presented to the Licensee when accessing certain Services. Use of other ESRI products or services is subject to the appropriate written agreement or click -through license provided, and are separate from these Terms of Use. 1. ACCEPTANCE OF TERMS OF USE 1.1 Acceptance. By accessing this ESRI Web site, Licensee agrees to be bound by this ESRI Web Site and Service Terms of Use ("Terms of Use") between Licensee and Environmental Systems Research Institute, Inc. ("ESRI"), located at 380 New York St., Redlands, California, 92373. As used in these Terms of Use, "Services" includes but is not limited to software; data; images, photographs, animations, video, audio, or music; text, scripts, or markup code; service packs, patches, or technical support in response to requests; web services; publicly available APIs or JavaScript libraries; documentation; or other information, electronic resource, or service provided on this ESRI Web site (either collectively and or individually). 1.2 Third -Party Content. When using the Services, Licensee may have the opportunity to leave the ESRI Web site in order to access and download additional content provided by third -parties, including software, data, and imagery, as more fully described in Article 4.3 herein. Licensee acknowledges that third -party content is solely the responsibility of the third -party content provider-. These Terms of Use do not convey to the Licensee any rights to access or use third -party content (including copying, distributing, creating derivative works from, or publicly displaying). Access and use of third -parry content may require that Licensee agree to different or separate terms, conditions, and restrictions. Agreeing to any such terms and conditions will be between the Licensee and the third -party content provider, and will not affect these Terms of Use or any separate agreements between the Licensee and ESRI. 13 Modifications to the Web Site or Terms of Use. ESRI reserves the right to change content provided in and access to Services at any time without notice to the Licensee. This may be done at ESRI's sole discretion, for any reason including, but not limited to, legal compliance, change in ESRI policy, aesthetic or technology development, or internal business or legal considerations. ESRI may also, from time to time, modify or replace these Terms of Use or Web Site Privacv Policy, which may affect the Licensee's rights to use the Services provided. Modified or replaced Terms of Use or Web Site Privacy Policy will be made available to the Licensee on the ESRI Web sites where the Services are provided. Licensee understands and agrees that access or use of Services after the modified or replaced Terms of Use or Web Site Privacy Policy is posted will signify Licensee's acceptance to the modified or replaced Terms of Use and Web Site Privacy Policy. Licensee further understands that it is the Licensee's responsibility to read the current Terms of Use or Web Site Privac Py olic_y—ESRI will not contact Licensee regarding modified or replaced Terms of Use. 2. OWNERSHIP, GRANT OF RIGHTS, AND USE RESTRICTIONS 2.1 Ownership. The Services provided on ESRI Web sites and any content provided therein are provided to the Licensee subject to these Terms of Use. The Services may be freely available to the Licensee, but they are not in the public domain unless specified as such. ESRI and third -party licensors own the Services (unless otherwise specified), which are protected by United States laws and applicable international laws, treaties, and conventions regarding intellectual property or proprietary G -5773K 1 8/28/09 rights. These Terms of Use do not transfer any rights to redistribute, prepare derivative works from, or acquire ownership interest in Services. 2.2 Grant of Noncommercial Use of Services. Licensee may download, view, copy, and print Services available on ESRI Web sites solely for its own internal purposes, or for its own noncommercial external purposes unless otherwise specified. Services may not be reproduced or transmitted for commercial purposes, in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system now known or later developed, except as expressly permitted in writing by SSRI. Proper attribution to ESRI must be given for any use of the Services. For the purposes of this Article 2.2, "Noncommercial Use" means Licensee's authorized use of the Services wherein the Licensee provides the Services to third parties at no charge, and that Licensee or Licensee's third party users do not generate income, promote the generation of income, promote the generation of income, or any other means of commercial advantage or private financial gain from such use. ESRI reserves the right to determine if the Licensee's use of Noncommercial Services that access through ArcGIS Online qualifies as a no charge Noncommercial Use, or as a Commercial Use that requires a separate license and license fee. ESRI may at any time, and at its sole discretion, change, alter, or discontinue the ArcGIS Online services provided to Licensee or any third party customer accessing these free services. 2.2.1 Grant of Commercial Use of the Services. Upon Licensee's payment to ESRI of the applicable license fee(s) and Licensee's acceptance of the Terms of Use, Licensee may access, download, view, copy, and print Services available on ESRI Web sites, for Licensee's Commercial Use. As a condition of this grant of Commercial Use license, Licensee agrees to have in place a license agreement with Licensee's third party users, the terms of which protect the Intellectual Property rights of ESRI and its licensor(s). Licensee shall maintain accurate business records, including accurate transactions records, of any such Commercial Use licenses which ESRI may audit upon reasonable written notice to Licensee. On or before the renewal date of Licensee's authorized Commercial Use, Licensee shall provide such written transaction records to ESRI. For the purposes of this Article 2.2.1, "Commercial Use" means Licensee's authorized use of the Services wherein Licensee provides the Services to third parties through transactions that Licensee or Licensee's third party users generate income, promote the generation of income, or any other means of commercial advantage or private financial gain from such use. Inquires regarding additional uses not provided herein may be submitted to ESRI through a Copyright information or Permissions request. 2.3 Improper Use of Services. Any rights not granted herein or otherwise agreed to in writing between Licensee and ESRI are prohibited. In particular, Licensee may not (or attempt to) (a) access Services or resources not made available to Licensee through a standard web browser or ESRI products; (b) reverse -engineer, decompile, access, or hack ESRI Services not made readily available to Licensee (without consideration given to how reasonable the means used are to keep such secure); (c) use Services in such a manner as to adversely affect ESRI's commercial interests; (d) alter, obstruct, or remove any proprietary rights notices provided with the Services; (e) manually or systematically harvest information contained within the Service; or (f) use Services in for illegal, improper, or inappropriate purposes (including but not limited to defamation or harassment of others; distribution of obscene or indecent material; stalking; or distribution of content in violation of the proprietary rights of others). Any of the forgoing, whether merely attempted or successfully executed, is a material breach of these Terms of Use. 2.4 Trademarks and Logos. "ESRI," the globe logo, and other marks used in this Web site are trademarks or registered trademarks of Environmental Systems Research Institute, Inc. Other names appearing on this ESRI Web site may be trademarks or registered trademarks of their respective trademark owners. These marks may only be used where authorized by ESRI or permitted by law. Any use not authorized by ESRI shall be considered a material breach of these Terms of Use. Additional information regarding ESRI's Copyrights and Trademarks may be found online. Please visit ESRI's Web Link and Logo License Agreement page for information on providing a link from Licensee's Web page to ours. 2.5 Third -Party Data and/or Imagery Licensing Terms and Use Restrictions. Services provided by ESRI Web sites (including ArcGIS Online Services) may contain third -party data and/or imagery. Use of third -party data and/or imagery may be subject to such third party's License Agreement or additional use restrictions. Any applicable third party license agreement may be found at http://www.esri.comAegal/. Licensee is responsible for compliance with all applicable third party license agreement(s). Third party Use Restrictions may be provided with the data (such as with metadata) or under ESRI's Use of Data Restrictions. The third party license agreement(s) and any applicable use restrictions may be modified by ESRI from time to time and it is Licensee's responsibility to check for updates to these license agreements or use restrictions. If a modification any third party license agreement, or use restrictions is unacceptable, Licensee may cancel your access upon G-577/JK 2 8/28/09 written notice to ESRI or discontinue use of the Service, as applicable. Continued use of the Service will be deemed acceptance of any modifications. 2.6 Sharing of Licensee's Content. In the event Licensee desires to make use of the ArcGIS Online content sharing feature by uploading or publishing any of Licensee's data and/or imagery to ArcGIS Online, Licensee hereby grants ESRI a nonexclusive, revocable, royalty free, worldwide limited license (i) to use, store, cache, copy, reproduce, (re) distribute, and (re) transmit Licensee's data and/or imagery that is made available to end users of ArcGIS Online, and (ii) to provide end users of ArcGIS Online a hypertext reference link from ArcGIS Online to the end user's map services at a specific URL containing Licensee's registered data and/or imagery and services, and (iii) to provide Licensee's registered data and/or imagery and publishing services to an end user's web browser as intended by ArcGIS Online. Moreover, Licensee grants all end users of ArcGIS Online the right to access and use Licensee's data and/or imagery and map services subject to any of Licensee's Terms of Use, License Agreements, or meta data file information that Licensee will provide when Licensee's data and/or imagery is registered for use on ArcGIS Online. 2.7 Use for Certain Services, Requirement of Notice. Unless provided for in a separate agreement between Licensee and ESRI, any Services consisting of source code, scripts, publicly available Web -based libraries (such as JavaScriptrm libraries), APIs (such as ArcGIS APIs), or other Services used in application or Web site development should reference ESRI and these Terms of Use in a manner adequate to (a) make the ownership of the Service clear and (b) reference these Terms of Use. For instance, when referencing JavaScript libraries in a Web page, a comment should be included adjacent to the reference to the library providing: The ArcGIS JavaScript API is owned by ESRI and is used subject to the Terms of Use found at htip://www.esri.com/termsofuse Please contact ESRI if you are unsure how to give proper attribution. 2.8 Copyright Policy. ESRI's copyright policy is to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to take-down allegedly infringing materials and/or terminating the accounts of repeat infringers, as applicable. Further details of ESRPs copyright policy can be found at http://www.esri.com/legal/licensin-/dmea polio html. 3. PRIVACY 3.1 Web Site Privacy Policy. ESRI may request certain information, configuration data, or personal information to access select Services or to provide support through this Web site. ESRI will collect and use this information in accordance with our Web Site Privacy PY olicY. Licensee agrees to the use of this information in accordance with the Web Site Privacy Policy. 3.2 Passwords and Account Information. Some parts of this ESRI Web site may require Licensee to create and use a personal account to access the Services provided. Licensee is responsible for maintaining the confidentiality of the password for Licensee's personal account and is fully responsible for all activities that occur under Licensee's personal account unless access to your account number, account name, or password was obtained through no fault or negligence of the Licensee. Licensee agrees to the following: 3.2.1 Licensee will provide truthful and accurate information at all times when using Services provided on ESRI Web sites; 3.2.2 Licensee understands that using a false or incomplete name or e-mail address, impersonating any person or entity, or falsely stating or otherwise misrepresenting affiliation with a person or entity will result in immediate removal of Licensee's personal account and termination of any rights provided herein; 3.2.3 Licensee will use the Services for its use, and the account's name and e-mail address must be specific to Licensee— personal accounts may not be shared with other users; 3.2.4 Licensee understands that sharing account information or allowing others to access Licensee's account will result in removal of Licensee's personal account; 3.2.5Licensee will notify ESRI of any unauthorized use of Licensee's password or account or any other breach of security as soon as Licensee becomes aware of such use or breach; and G -5774K 3 8/28/09 3.2.6Licensee will log off from account at the end of each session. ESRI shall not be liable for any loss or damage arising from Licensee's failure to comply with this section. 3.3 Termination of Personal Account. ESRI reserves the right to monitor use of ESRI Web sites. ESRI reserves the right to suspend or cancel Licensee's account or access to ESRI Web sites at any time, or take any other appropriate measures in our legal capacity to enforce these Terms of Use. If Licensee's personal account is removed from ESRI Web sites for not following these Terms of Use, Licensee may not be allowed to return or create a personal account in the future. 4. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY 4.1 Exclusion of Warranties. THE SERVICES PROVIDED ON THIS ESRI WEB SITE ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON - INFRINGEMENT. IN PARTICULAR, LICENSEE UNDERSTANDS THAT ESRI AND ITS AFFILIATES DO NOT WARRANT OR REPRESENT THAT THE SERVICES PROVIDED IN THIS ESRI WEB SITE WILL BE: 4.1.1 AVAILABLE TO LICENSEE UNINTERRUPTED IN A SECURE FORM; 4.1.2 ACCURATE OR FREE FROM ERROR; OR 4.1.3 FIT TO USE IN LICESNEE'S APPLICATION, FOR LICENSEE'S PURPOSES, OR ACCORDING TO LICENSEE'S REQUIREMENTS OR NEEDS. ESRI IS UNDER NO OBLIGATION TO CORRECT ANY ERRORS OR INCONSISTENCIES IN THE SERVICES. 4.2 Limitation on Liability. ESRI SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATED TO LICENSEE'S DECISION TO ACCESS AND USE ANY OF THE SERVICES PROVIDED ON THE ESRI WEB SITE, EVEN IF ESRI IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 4.3 Links to Third -Party Sites. Many links on ESRI Web sites link to Web sites owned and operated by third -parties. These Web sites are not under ESRI's control and ESRI is not responsible for information (regardless of how it is transmitted or received) or services provided by third -party Web sites. Any links to third -party Web sites provided on ESRI Web sites do not imply an endorsement, affiliation, or sponsorship of any kind and do not represent warranties of the quality of services provided by such third -parties. 5. TERM AND TERMINATION 5.1 Term. These Terms of Use shall continue to apply until terminated by Licensee or ESRI. Termination may only occur as provided in this section. 5.2 Termination by Licensee. Licensee may terminate these Terms of Use for any reason by (a) sending an email or letter to the address provided herein, Attn: Contracts and Legal Services, expressing clearly in English Licensee's desire to terminate these Terms of Use ("Termination Letter") and (b) ceasing and discontinuing the use of all Services on or before sending the Termination Letter to ESRI. Continued use of the Services after sending the Termination Letter constitutes acceptance and agreement to these Terms of Use. 5.3 Termination by ESRI. ESRI may terminate these Terms of Use if: 5.3.1 Licensee has breached the terms and conditions provided in these Terms of Use through either your action or inaction; 5.3.2 Licensee has breached an agreement Licensee has with ESRI relating to the use of ESRI products or services; 5.3.3 ESRI discontinues the Services on which these Terms of Use are based; or 5.3.4 ESRI, at its sole discretion, believes that it is in ESRI's best commercial interest to terminate these Terms of Use. G-577/JK 4 8/28/09 5.4 Effects of Termination. Upon termination of these Terms of Use, all rights and obligations owed by the parties shall cease except for those set forth in Sections 2, 3, and 5. Those rights and obligations shall continue indefinitely. 6. EXPORT COMPLIANCE Licensee may not access, upload, download, use, or export Services provided on the ESRI Web site in violation of U.S. Export Control laws or regulations, or in violation of any other applicable laws or regulations. Licensee agrees to comply with all export laws and restrictions and regulations of any United States or foreign agency or authority and not to directly or indirectly provide or otherwise make available Services in violation of any such restrictions, laws, or regulations, or without all necessary approvals. Specifically prohibited is the use of any Services for the development, design, manufacture, or production of nuclear, chemical, or biological weapons of mass destruction. As applicable, Licensee shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to Licensee's own use of the Services outside the United States. Neither the Services nor the underlying information or technology may be downloaded or otherwise provided or made available, either directly or indirectly, (a) to any country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Denial Orders. By agreeing to these Terms of Use, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in or under the control of, or is not a national or resident of any such country or on any such list. 7. GENERAL TERMS 9.1 Order of Precedence. For any Services delivered pursuant to this ESRI Web Site and Service Terms of Use Agreement, in the event of a conflict between the terms of this ESRI web Site and Service Terms of Use Agreement and any other Agreement, Agreement Exhibit, other Attachment, or any operative Addendum to this Use Agreement, the order of precedence in resolving such conflict shall be (i) this ESRI Web Site and Service Terms of Use Agreement, (ii) any operative Addendum threto, and finally (iii) the Master Purchase Agreement to which this ESRI web Site and Service Terms of Use Agreement is a part. Neither the Licensee nor ESRIany „these of the other party.Florida theseMiami-Dade Notice to the Licensee shall only be proper if made by certified mail at the address provided herein. G-577/JK 5 8/28/09 . AreGIS ONLINE PREMIUM SERVICES USE AGREEMENT ESRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 UNLESS OTHERWISE SUPERSEDED BY A SIGNED ArcGIS ONLINE PREMIUM SERVICES USE AGREEMENT ("USE AGREEMENT") BETWEEN THE CITY OF MIAMI ("LICENSEE" OR "USER") AND ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. ("ESRI"), ESRI IS WILLING TO GRANT LICENSEE A LICENSE TO ACCESS AND CONSUME THE ArcGIS ONLINE PREMIUM SERVICES DESCRIBED IN THIS USE AGREEMENT ONLY ON THE CONDITION THAT LICENSEE ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. PLEASE READ THIS USE AGREEMENT FOR ArcGIS ONLINE PREMIUM SERVICES CAREFULLY BEFORE LICENSEE ACCEPTS THIS USE AGREEMENT. LICENSEE'S ACCESS TO THE ArCGIS ONLINE PREMIUM SERVICES WILL NOT BEGIN UNTIL LICENSEE HAS MANIFESTED ITS ASSENT TO ALL OF THE TERMS AND CONDITIONS IN THIS USE AGREEMENT BY CLICKING THE "I ACCEPT" BUTTON BELOW. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS AS STATED, THEN ESRI IS UNWILLING TO LICENSE THE ArcGIS ONLINE PREMIUM SERVICE(S) TO LICENSEE, AND LICENSEE SHOULD CLICK THE "I DO NOT ACCEPT" BUTTON BELOW, IN WHICH EVENT, LICENSEE WILL NOT GAIN ACCESS TO THE ArcGIS ONLINE PREMIUM SERVICES. SECTION A—GENERAL TERMS AND CONDITIONS This Use Agreement is entered into by and between ESRI and Licensee. ESRI is making available to Licensee certain premium data and/or imagery services provided hereunder (hereinafter individually or collectively referred to as the "Service(s)" through the Service(s) Web site. ESRI provides the Service(s) to Licensee subject to the Licensee's payment of applicable license or subscription fees, the terms and conditions of this Use Agreement, and any other operative Addendum(s), that may apply for the respective Service(s). Unless explicitly stated to the contrary, these terms and conditions, and the terms and conditions of any operative Addendum, shall govern Licensee's use of any new feature(s) that augment or enhance the current Service(s), including the release of any new Service(s). If Licensee is using any of the Service(s) on behalf of Licensee's employer, Licensee represents that Licensee is authorized to accept these terms and conditions on behalf of Licensee's employer. ARTICLE I—CONFIDENTIAL INFORMATION To gain access to the Service(s), the parties hereby agree to these confidentiality provisions. Notwithstanding any other provision of this Use Agreement, ESRI understands that the Licensee is subject to, and shall fully comply with, the provisions of Chapter 119, Florida Statutes. 1.1 Licensee acknowledges that Licensee will obtain direct access via ESRI's Web site to certain ESRI confidential information including any and all password or controlled access information provided by ESRI and ESRI databases containing confidential information of ESRI and its licensors. ESRI acknowledges that ESRI may receive Licensee's confidential information, data, business, product, or application marketing strategies and other valuable technical or personal information. The receiving party shall hold such confidential information ("Information"), which Information has been clearly marked as "Confidential" or "Proprietary" by the disclosing party, in strict confidence and may provide Information to employees within its organization only on a need -to -know basis. Licensee shall maintain and safeguard the confidential nature of Licensee names, passwords, or registration information received from ESRI or its third party suppliers with the same degree of care as it safeguards its own confidential information of similar nature, but in no case less than reasonable care. When applicable, ESRI may also distribute Information to ESRI distributors and affiliates who have a need to know and actively participate in the delivery of ArcGIS Online Services or corresponding support to Licensee. Licensee may use the Information obtained from ESRI's Web site, or by any other means of disclosure, solely for the purpose of developing, maintaining, and supporting Licensee's Web -enabled applications subject to the respective grant of license in Section B, Article 2, to license additional ESRI software, data, or Service(s), or to support any other activities in furtherance of this Use Agreement. 1.2 The receiving party shall not acquire any rights, title, or ownership to the disclosing party and/or its licensor's Information, except the limited rights to use the Information as described above. G -5825K 1 7/9/09 1.3 The receiving party's obligations to maintain the confidentiality of the disclosing party's Information shall continue for three (3) years after the date of first receipt of any Information hereunder. Upon termination of this Use Agreement or upon the disclosing party's written request, the receiving party must cease use of Information and return or destroy all Information. 1.4 This Article 1, Confidential Information, shall impose no obligation upon the receiving party with respect to Information that the receiving party can establish by legally sufficient evidence that (a) it possessed, or knew, prior to its receipt hereunder, or received from the disclosing party without an obligation to maintain its confidentiality; (b) Information is or has become generally known to the public through no act or omission by the receiving party, or otherwise without violation of this Use Agreement, (c) Information was obtained from a third party that had the right to disclose it without an obligation to keep such information confidential; (d) Information was independently developed without the use of Information and without the participation of individuals who have had access to Information; or (e) Information is obtained in response to a valid order by a court or other governmental body, as otherwise required by law or as necessary to establish the rights of either party under this Use Agreement and as disclosed after adequate prior notice to the disclosing party, to afford the disclosing party the opportunity to object to or seek a protective order against the disclosure. ARTICLE 2—LICENSEE'S CONDUCT REGARDING THE USE OF ESRI WEB SITE AND SERVICE(S) 2.1 Licensee agrees not to use the Service(s) in any way for spamming or to transmit chain letters, junk e-mail, or bulk communications. Without liability, ESRI reserves the right to block, filter, or delete any such unsolicited communications described above. Licensee agrees not to transmit through the Service(s) any content that is objectionable or upload such content onto ESRI's Web site or its servers. Licensee agrees not to use any ESRI domain name as a pseudonymous return e- mail address for any communications that Licensee transmits from another location or through another service. Licensee agrees not to pretend to be someone else or spoof their identity when using the Service(s). 2.2 Licensee agrees not to use the Service(s) for any unlawful activities not otherwise covered above, including without limitation, attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, or making direct threats of physical harm. In addition to the foregoing, Licensee's use of the Service(s) shall not (a) impersonate any person or entity, including, but not limited to, an ESRI official or employee, ESRI's Web site or Service(s), or falsely state or otherwise misrepresent Licensee's affiliation with an ESRI person or entity; (b) upload, post, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment; (c) intentionally or unintentionally violate any applicable local, state, or federal law or any regulations having the force of law including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission or any national securities exchanges; or (d) stalk or otherwise harass another. Without liability, ESRI reserves the right to terminate this Use Agreement and to discontinue Licensee's access to the Service(s) immediately upon ESRI's determination that Licensee has engaged in any of the foregoing. Additional restrictions, or terms of use, concerning the use of ESRI's third party licensor (s) of data and/or imagery contained in the Service(s) are set forth in Section C below. ARTICLE 3—NOTICES; MODIFICATION AND TERMINATION OF SERVICE(S) ESRI may send notices to Licensee via e-mail, regular mail, and or through available on-line documentation. The Service(s) may also provide notices of changes to the terms and conditions of this Use Agreement or other matters by displaying notices or links to notices to Licensee generally about the Service(s). ESRI reserves the right, at any time and from time to time, to modify change, restrict, or discontinue, temporarily or permanently, the Service(s) (or any part thereof), provided ESRI shall use commercially reasonable efforts to provide Licensee's registered user timely electronic mail notification of such modification or change in the Services. ESRI may make changes to the Service(s), including those regarding products, services, programs, Use terms and conditions, and prices, at any time. For Licensees accessing Services that contain data and/or imagery from Microsoft, ESRI reserves the right at its sole discretion or at such time Licensee has exceeded the then current cumulative annual transaction level, to convert the Licensee's license to a subscription based license upon electronic mail notice to the registered Licensee. Licensee can review the most current version of the Service(s) or this Use Agreement, and/or any operative Addendum that may apply, at any time at www.esri.com/le2al/. If a modification of the Service(s) or the terms of the Use Agreement is unacceptable to the Licensee, the Licensee may cancel the Use upon written notice to ESRI; email notification will suffice. If Licensee continues to use the Service(s), the Licensee will be deemed to have accepted the modifications. Any termination of Licensee's access to the Service(s) due to the breach of any provision of this Use Agreement may be effected without prior notice, and ESRI may immediately deactivate or delete Licensee's Service(s) site account and/or bar any further access to such files or the Service(s). Furthermore, ESRI will not be liable to Licensee or any third party for any termination, modification, or suspension of the Service(s). G-582/JK 2 7/9/09 ARTICLE 4—INTELLECTUAL PROPERTY RIGHTS 4.1 "ESRI Trademarks" means all names, marks, brands, logos, designs, trade dress, and other designations ESRI uses in connection with the Service(s), software, data, or Information. Licensee may not use or co -brand Licensee's applications, products, or material associated with Licensee's applications or services with any ESRI Trademarks. Licensee agrees not to incorporate any ESRI Trademarks into Licensee's trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations. 4.2 As a condition of ESRI's grant of license to use the Service(s), Licensee shall not remove any intellectual property notices, proprietary legends, and/or U.S. Government Limited/Restrictive Rights legend contained in the Service(s), the metadata files of any of the Service(s), and any online and/or hard -copy attribution page of any data or documentation delivered hereunder and shall affix any attribution notices as may be specified therein. 4.3 Except as specifically set forth in Section B, Article 2, in no event shall this Use Agreement confer any license under any of ESRI's or any third -party provider's intellectual property rights, whether by estoppel, implication, or otherwise. Licensee acknowledges sole responsibility for obtaining any other use licenses. 4.4 Copyright Policy. ESRI's copyright policy is to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to take-down allegedly infringing materials and/or terminating the accounts of repeat infringers, as applicable. Further details of ESRI's copyright policy can be found at hU://www.esri.com/dmca.html." ARTICLE 5—DISCLAIMER OF WARRANTIES 5.1 LICENSEE'S USE OF THE SERVICES) IS AT LICENSEE'S SOLE RISK. THE SERVICES) AND CONTENT ARE PROVIDED ON AN "AS -IS" AND "AS -AVAILABLE" BASIS. UNLESS OTHERWISE EXPLICITLY STATED, THE SERVICE(S) OR CONTENT ON ESRFS WEB SITE IS NOT INTENDED FOR USE IN ANY MISSION -CRITICAL APPLICATIONS. ESRI DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ESRI MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTIES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF ANY OF THE SERVICE(S) OR CONTENT CONTAINED ON ESRPS WEB SITE. 5.2 THE SERVICE(S) OR CONTENT HAS BEEN OBTAINED FROM SOURCES BELIEVED TO BE RELIABLE, BUT ITS ACCURACY AND COMPLETENESS ARE NOT GUARANTEED. THE SERVICE(S) AND CONTENT MAY CONTAIN SOME NONCONFORMITIES, DEFECTS, INACCURACIES, ERRORS, OR OMISSIONS. ESRI MAKES NO WARRANTY OR CONDITION THAT (a) THE SERVICE(S) WILL MEET LICENSEE'S REQUIREMENTS; (b) THE SERVICES) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR -FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY SERVICE(S), DATA OR INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE SERVICE(S) WILL MEET LICENSEE'S EXPECTATIONS; OR THAT (e) ANY ERRORS IN THE SERVICE(S), SOFTWARE, DATA, OR INFORMATION WILL BE CORRECTED. 5.3 ANY SOFTWARE, DATA, OR INFORMATION DELIVERED PURSUANT TO THIS USE AGREEMENT OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE(S) IS DONE AT LICENSEE'S OWN DISCRETION AND RISK, AND LICENSEE IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH SOFTWARE, DATA, OR INFORMATION INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES OR OTHER MALICIOUS COMPUTER CODE. 5.4 BOTH PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS, AND THAT (a) THE INTERNET IS NOT A SECURE INFRASTRUCTURE, (b) NEITHER PARTY HAS CONTROL OVER THE INTERNET, AND (c) NEITHER PARTY IS LIABLE FOR DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE SERVICE(S). G-582/JK 3 7/9/09 5.5 THE SERVICE(S) OR CONTENT DELIVERED HEREUNDER ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE FOR INSURANCE UNDERWRITING, OR WITH CRITICAL HEALTH AND SAFETY OR ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS THAT REQUIRE FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, EMERGENCY RESPONSE, TERRORISM PREVENTION OR RESPONSE, LIFE SUPPORT, OR WEAPONS SYSTEMS ("HIGH-RISK ACTIVITIES"). ESRI SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF FITNESS OR HIGH-RISK ACTIVITIES. 5.6 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM ESRI OR THROUGH OR FROM THE SERVICE(S) WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE TERMS OF THIS USE AGREEMENT. ARTICLE 6—LIMITATION OF LIABILITY 6.1 IN NO EVENT SHALL ESRI OR ITS THIRD -PARTY LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE (EVEN IF ESRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR RELATED TO THE FOLLOWING: (a) THE USE OF, OR THE INABILITY TO USE, THE SERVICE(S); (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE(S) RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICE(S) PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE(S); (c) UNAUTHORIZED ACCESS TO, OR ALTERATION OF, LICENSEE'S TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE(S); OR (e) ANY OTHER MATTER RELATING TO THE SERVICE(S) INCLUDING CONTENT LICENSEE MAY DOWNLOAD, USE, MODIFY, OR DISTRIBUTE FROM ESRPS WEB SITE. 6.2 LICENSEE HAS SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF ANY DATA AND/OR ANY EQUIPMENT USED IN CONNECTION WITH THE SERVICE(S) AND WILL NOT MAKE A CLAIM AGAINST ESRI FOR LOST DATA, RERUN TIME, INACCURATE OUTPUT, WORK DELAYS, OR LOST PROFITS RESULTING FROM THE USE OF THE SERVICE(S). 6.3 LICENSEE AGREES TO HOLD ESRI HARMLESS FROM, AND LICENSEE COVENANTS NOT TO SUE ESRI FOR, ANY CLAIMS BASED ON USING THE SERVICE(S) AS INTEGRATED AS PART OF LICENSEE'S VALUE- ADDED APPLICATION, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE, INFRINGEMENT), OR OTHERWISE. 6.4 Licensee agrees that the limitation of liability and disclaimers set forth in this Use Agreement will apply regardless of whether Licensee has accepted any Service(s), software, data, or documents delivered by SSRI. Licensee agrees that ESRI sets its prices and entered into this Use Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of bargain between the parties. ARTICLE 8- ESRFS PRIVACY POLICY ESRI respects Licensee's desire for privacy. ESRI's Privacy Policy can be found at www.esri.com/privacv. By using the ESRI Web site, Licensee is consenting to the processing of Licensee's registration Information by ESRI, by the data and/or service provider, and, if applicable, by any authorized ESRI distributor responsible for providing technical support to Licensee and consenting to the terms of ESRI's Privacy Policy. If ESRI decides to change that policy, it will post the revised policy prominently on ESRI's Web site or otherwise bring it to Licensee's attention, so that Licensee is always aware of what ESRI does with Licensee's registration Information. G-582/JK 4 7/9/09 ARTICLE 7—GENERAL INFORMATION 9.1 This Use Agreement constitutes the entire Use Agreement between Licensee and ESRI and governs Licensee's use of the Service(s) superseding any prior agreements between Licensee and ESRI (including, but not limited to, any prior versions of the Use Agreement). Also, Licensee may be subject to additional specific terms and conditions that may apply when Licensee accesses and uses other Service(s), ESRI software, third -party content, or third -party software. Licensee may not assign or otherwise transfer the terms and conditions nor any rights granted herein. Articles 1, 4, 5, 6, 7, and 9 shall survive terminationof this Use Agreement. 9.2 Fees quoted to User are exclusive of any and all applicable taxes or fees including, but not limited to, sales tax, use tax, value-added tax (VAT), customs, duties, or tariffs, and shipping and handling charges. 9.3 For any Services delivered pursuant to this Use Agreement, in the event of a conflict between the terms of this Use Agreement and any other Agreement, Agreement Exhibit, other Attachment, or any operative Addendum to this Use Agreement, the order of precedence in resolving such conflict shall be (i) this Use Agreement, (ii) any operative Addendum to this Use Agreement, and finally (iii) the Master Purchase Agreement to which this Use Agreement is a part. SECTION B—SPECIAL TERMS AND CONDITIONS FOR USE WITH ArcGIS ONLINE SERVICES ARTICLE 1—DESCRIPTION OF SERVICE 1.1 ArcGIS Online Services. ESRI, through its Web site, provides Licensee with certain premium data and/or imagery Services. For details on premium services, see hM://www.esri.com/software/arc ig s/arceisonline-services/aeol- premium/index.html 1.2 ESRI may make improvements and/or changes in its offerings of the Service(s), or prices described in this ESRI Web site at any time without notice. Changes are periodically made to the Web site and to the Service(s). ESRI may amend the ArcGIS Online Services Use Agreement or any other operative Addendum(s) at any time by posting the amended terms on this site. 1.3 Updates to the Service(s) described in Article 1.2 above are immediately made available to Licensee upon their release for commercial availability as described in the online documentation and are provided to Licensee at no additional charge. ARTICLE 2—LICENSE a. Grant for ArcGIS Online Premium Services for ArcGIS Licensees. Upon the Licensee's payment of the applicable subscription fee, Licensee is granted a nonexclusive, nontransferable, limited license to access the Service(s), whether through a desktop application or a server application interface, to which Licensee subscribes. Such license includes the right to access the Service(s) made available on the Web site and to use the Service(s) to develop and integrate Service(s)-generated functionality into Web -enabled applications. The Service(s) shall be used solely by Licensee for Licensee's own internal business purposes, including Internet and extranet access and solely in conjunction with ESRI software or applications. Licensee shall include the applicable ArcGIS Online Premium Services copyright attribution notice as set forth in the relevant data source. In the event Licensee should (i) create a Web -enabled application using the Service(s) and, (ii) intend to deploy such application to third parties as an Application Service Provider (ASP), as defined below, then additional license or subscription fees will be due and payable to ESRI, and (iii) the Licensee agrees to have an enforceable agreement in place with any customer or end user of such Web -enabled application that contains terms and conditions substantially similar to the terms and conditions of this Use Agreement and any operative Addendum(s) that may apply. For the purposes of this Article 2, an ASP shall mean any individual, business, government, or educational user that intends to operate or use an application created that uses the Service(s) (i) outside of their business or organization, and (ii) in a commercial environment that generates income or is used to promote the generation of income. Additional ESRI software, data, or information not included in the Service(s) is available to Licensee for use in conjunction with the Service(s), subject to a separate ESRI license agreement. Licensee may require third -party owned and provided data that will require additional third -party terms and conditions that are set forth in Section C hereto. Licensee shall maintain accurate business records, including accurate transactions records of its use of the Service(s) under this section. ESRI reserves the right to monitor Licensee's accounts and transactions, and may audit upon reasonable written notice to Licensee. b. Grant for ArcGIS Online Premium Services for API Licensees. Licensee is granted a nonexclusive, nontransferable, limited license to access the Service(s), and updates, to which Licensee subscribes. Such license includes the right to G-582/JK 5 7/9/09 access the Service(s) made available on the Web via alternative server application interfaces, and to use the Service(s) to develop and integrate Service(s) generated functionality into Web -enabled applications. The Service(s) shall be used solely by Licensee and for Licensee's own business purposes only. In the event Licensee should (i) create a Web -enabled application using the Service(s) and, (ii) intends to deploy such application to third parties acting as an ASP as defined in (a) above, then additional license or subscription fees will be due and payable to ESRI. The Licensee agrees to have an enforceable agreement in place with any customer or end user of such Web -enabled ASP application that contains terms and conditions substantially similar to the terms and conditions of this Use Agreement and any operative Addendum(s) that may apply. Licensee may require third -party owned and provided data that will require additional terms and conditions that are set forth in Section C hereto. ESRI software, data, or documentation not included in the Service(s) is available to Licensee for use solely in conjunction with the Service(s), or with ESRI Software, subject to a separate ESRI license agreement. Licensee shall maintain accurate business records, including accurate transactions records of its use of the Service(s) under this section. ESRI reserves the right to monitor Licensee's accounts and transactions, and may audit upon reasonable written notice to Licensee. c. Commercial Use of Services. Upon Licensee's payment to ESRI of the applicable license fee(s) and the execution of this Use Agreement, Licensee may access, download, view, copy, and print Services available on ESRI Web sites, for Licensee's Commercial Use. As a condition of this grant of Commercial Use license, Licensee agrees to have in place a license agreement with all of Licensee's third party customers the terms of which protect the Intellectual Property rights of ESRI and its licensor(s) substantially similar to the terms and conditions herein. Licensee shall maintain accurate business records, including accurate transactions records, of any such Commercial Use licenses which ESRI may audit upon reasonable written notice to Licensee. On or before the renewal date of the authorized Commercial Use, Licensee shall provide such written transaction records to ESRI. For the purposes of this Article 2 c, Commercial Use means Licensee's authorized use of the Services wherein Licensee provides the Services to third parties through authorized transactions that Licensee and/or its third party customers generate income, or promote the generation of income from use. d. Limitations. Except as may be expressly provided for elsewhere herein, Licensee may not copy, download, store, cache, or otherwise distribute, publish, transmit, transfer, sell, or otherwise use the Service(s). Licensee may not sell, rent, lease, lend, time-share, assign, or transfer any right to use the Service(s) to any third party without the prior express written permission of ESRI. Except for Licensee's use of the Service(s) in conjunction with ArcGIS when Licensee may download and store the results derived from Licensee's use of the Service(s), Licensee may not store the results derived from Licensee's use of the Service(s) for the purpose of creating a value-added Web -enabled application that Licensee intends to resell, license, or otherwise distribute to third parties. Licensee may not reverse engineer, decompile, or disassemble the Service(s), except to the extent that such activity is permitted by applicable law notwithstanding this restriction, in order to protect ESRI or its suppliers' trade secrets and proprietary information contained in the Service(s). Licensee may not create derivative Service(s) or add value to the Service(s) and thereafter resell or otherwise distribute the Service(s) as Licensee's own services. Licensee may not use the Service(s) and reformat and display the Service(s) in an attempt to mirror and/or make commercial use of the ESRI Web site. All rights not specifically granted in this Article 2, License are reserved to ESRI. e. Evaluation License—Bing Maps. In the event License chooses to utilize evaluation licenses for Bing Maps through ESRI, Licensee may access and utilize data and/or imagery provided by Microsoft for the limited purpose of its own internal evaluation of Bing Maps subject to the terms of this Use License and (i) the period of Licensee's evaluation shall not exceed one (1) consecutive ninety (90) day period only, (ii) use of the Service(s) are limited to evaluation, development and testing of applications, (iii) use of the Service(s) is limited to no more than 30,000 transactions per month, (iv) Licensee may not download more than 250 points of interest at any one time, and (v) Licensee may only access the Service(s) via the staging environment only ARTICLE 3—MISCELLANEOUS OR SPECIAL TERMS None SECTION C—TERMS AND CONDITIONS REQUIRED FOR USE OF THIRD -PARTY DATA AND/OR IMAGERY IN CONJUNCTION WITH ESRI ArcGIS ONLINE PREMIUM SERVICES ESRI agrees to make available to the Licensee certain Premium ArcGIS Online Services(s) that may include datasets and/or imagery owned by certain third -party suppliers ("Third -Party Data"). In the event Licensee accesses or utilizes such Third - Party Data, Licensee's use of such Third -Party Data will be governed, in addition to the terms and conditions of this Use Agreement, by the terms and conditions set forth in the Use of Data Restrictions page found at www.esri.com/legal/. Third Party Data and/or Imagery Use Terms. The authorized use of any Third Party Data contained in the Service(s) accessed by Licensee shall be governed by the following terms and conditions: G-582/JK 6 7/9/09 A. If Licensee utilizes Third Party Data and/or Imagery owned and provided by I -cubed as part of Licensee's access to the Service(s), then such use will be subject to the following terms and conditions: 1. Licensee may use any data and/or imagery for Licensee's own internal business purposes, and solely in conjunction with any ESRI ArcGIS product. 2. Licensee may cache the data and/or imagery on the client side for improved performance of the web -enabled application, or may delete the cache and access the image tiles from the server on an as needed basis. 3. Data and/or any imagery downloads are not permitted, without the express prior written permission of ESRI. Additional terms and license fees will apply to any such use permission. 4. In no event shall Licensee resale any data and/or imagery provided by I -cubed. B. If Licensee utilized Third Party Data and/or Imagery owned and provided by Microsoft as part of Licensee's access to the Service(s), then such use will be governed by the following terms and conditions: 1. Upon Licensee's consent to this ArcGIS Online Premium Services Use Agreement, Licensee expressly agrees that use of the any data and/or imagery provided by Microsoft as part of the Service(s) shall be governed by the terms and conditions of the Microsoft Terms of Use and Privacy Statement. 2. Microsoft's Terms of Use are found at the following link: hqp://P-o.microsoft.com/fwlink/"LinkId=21969 3. Microsoft's Privacy Statement is found at the following link: http://Qo.microsoft.com/fwlink/?Linkld=21970 Additional use restrictions and terms of use for any data and/or imagery provided by Microsoft as part of the Services are specified in Attachment No. 1 to this Use Agreement which is incorporated by reference herein and made part of this Use Agreement. G-582/JK 7 7/9/09 ATTACHMENT NO. 1 TO THE ArcGIS ONLINE PREMIUM SERVICES USE AGREEMENT As a condition of User's access and use through ESRI of any imagery and/or data provided by Microsoft, User agrees to the following terms: a. User's access and use of the Services containing Microsoft data and/or imagery may only be used in applications developed in conjunction with ESRI software. b. User's access and use of the Services in a staging environment shall be for development, testing, and maintenance purposes only and not for commercial release product. c. User must prominently display or hypertext link the Microsoft "Privacy Statement" and the "Microsoft MapPoint Terms of Use" on the bottom of each web page containing Microsoft data and/or imagery, in the "About" section for desktop applications, or in the end user's terms and conditions for mobile applications, as set forth in Section C above. d. User and its end user may not use the Services: (a) to copy, store, archive, and create a database of the Service generated content, except that geocodes may be stored locally when used in conjunction with the Company Applications; (b) in violation of local, state Federal or equivalent privacy or other laws or regulations; (c) to create routes by optimizing the order waypoints for multiple vehicles at the same time; (d) to deliver individual maneuvers of a calculated route such that the maneuvers are presented to the end-user, or the end-user is alerted to the maneuvers, in any manner synchronized with the end -user's sensor -based position along such route, including, for example, calculating the end -user's position as the end-user traverses the route and communicating a maneuver to the end-user as the end-user approaches the location pertaining to such maneuver; or (e) in any manner that threatens the integrity, performance, or availability of the Service. e. Users is prohibited from using or providing access to any bird's eye imagery (or associated metadata). f. Road traffic data in the Service (the "Road Traffic Data") may only be used to calculate and/or derive Traffic Transactions (defined in this Section below) in order to deliver and display such Traffic Transactions on Internet - based web pages (or WAP or substantially similar wireless protocol -based pages, excluding messaging protocols such as email, SMS, MMS or other plain text or rich test messaging), subject to the following restrictions: ■ Road Traffic Data may only be used in combination with the Service and not separately. Users may not deconstruct or mix and match the Road Traffic Data with traffic data from another supplier or associate or add any traffic data to or in combination with the Road Traffic Data. Users may only make available the Road Traffic Data for free, and only for the personal use of end users ■ Road Traffic Data may not be licensed to or used by: (i) radio/television stations; (ii) newspaper services; ■ (iii) any websites owned by (i) and (ii); or, (iv) any government-sponsored traveler information services, including, without limitation 511 services, consumer websites, or variable message signs on roads. ■ Road Traffic Data may not be licensed or used: (i) for television or radio broadcast; (ii) as part of or in conjunction with weather related services; (iii) for animation; (iv) for storing or the provision of continuously updated traffic data or alerts to end users, or (v) to develop a standalone (traffic only) traffic application. ■ Road Traffic Data may not be used by Company, Known Users or made available by Company or Known Users to its end users for use, on an Accurate Positioning Device. "Accurate Positioning Device" means a device or system with the capability to determine its physical location within a positioning accuracy of 200 meters or less. If a device which is not an Accurate Positioning Device based on the foregoing definition has the capability to transmit the Data to an Accurate Positioning Device, then such device will be considered an Accurate Positioning Device. "Traffic Transaction" means the provision of any one of the following: (i) presentation of the Road Traffic Data on or related to a map which is presented through icon(s), text or voice; (ii) presentation of the Road Traffic Data in connection with driving directions, direct or indirect use of the Road Traffic Data to determine travel time for all or any portion of a route, and presentation of available traffic information along a route, all through icon(s), text or voice; (iii) direct or indirect use of the Road Traffic Data to calculate or create routes or alternate routes; and (iv) audio or textual presentation of the Road Traffic Data in a manner that does not involve use of a map or map information and which does not include (iHiii) above. g. Company and Known Users shall not use the Service to monitor or track the location or movement of Asset(s). "Asset" means one of any of the following classes: person, vehicle, device, or other mobile objects. G-582/JK 8 7/9/09 h. Microsoft data and/or imagery is provided AS -1S without warranty and use of such data and/or imagery accessed by the User shall be at user's sole risk. i. If User or its end user licenses any application that contains any Microsoft data and or imagery accessed as part of the Services to the U. S. Government, the following terns shall apply: a) Cost or Pricing DatalCommercial Item. Microsoft represents that the Service is a "Commercial Item" as defined in the Federal Acquisition Requirements (FAR) FAR Part 2.101. Company acknowledges that Microsoft will not, under any circumstances, accept Service Orders under this Use Agreement that would require the submission of cost or pricing data as defined by 48 CFR 15.4 or the submission of noncommercial items. b) Clauses Incorporated by Reference. The following FAR clauses are incorporated by reference into this Use Agreement for any orders which are placed on behalf of the United States Federal Government. The version of each clause shall be that version incorporated into Company's prime contract with a United States Federal Government customer. FAR Clause Title 52.219-8 Utilization of Small Business Concerns 52.222-26 Equal Opportunity 52.222-35 Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era. 52.222-36 Affirmative Action for Workers with Disabilities. 52.222-39 Notification of Employee Rights Concerning Payment of Union Dues or Fees 52.222-41 Service Contract Act of 1965 52.222-50 Combating Trafficking in Persons 52.222-51 Exemption from Application of Service Contract Act to Contracts for Maintenance, Calibration, or Repair of Certain Equipment -Requirements 52.222-53 Exemption from Application of the Service Contract Act to Contracts for Certain Services -Requirements 52.247-64 Preference for Privately Owned U.S.-Flag Commercial Vessels c) Disputes under a Government Contract Regarding any claims, controversies or disputes concerning matters which are subject to the Contract Disputes Act applicable to the prime contract between you and a United States Federal Government customer, the Parties' rights shall be determined in accordance with that Act. In the event that Microsoft is affected by a decision of the U.S. Government under the prime contract, and you do not elect to take Microsoft's claim forward on your own, Microsoft will have a right of indirect claim and appeal to include your reasonable cooperation in filing and sponsoring a claim against the United States Federal Government customer, which right may be exercised within fifteen (15) business days of your notice Microsoft that the you will not proceed with a claim. Any election by Microsoft to pursue a claim shall be at Microsoft's sole expense, and Microsoft will be responsible for all activities associated with prosecution of Microsoft's appeal. d) Disclosure of Confidential Information. You may disclose Microsoft confidential information contained in this Use Agreement or Addendum to a United States Federal Government customer solely as required under your prime contract with United States Federal Government Customer, provided you identify such confidential information in writing as being subject to 18 U.S.C. Section 1905 (Trade Secrets Act) and 5 U.S.C. Section 552 (Freedom of Information Act). G -5823K 9 7/9/09 CUSTOM SOFTWARE, TECHNICAL DATA, AND ASSISTANCE LICENSE ADDENDUM (E600 10/05) SSRI, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-307-3034 ARTICLE 1—DEFINITIONS All words, phrases, or terms defined in other parts of this Agreement shall have the same meaning in this Addendum. The following additional words, phrases, or terms shall have the following meaning: i. "Task Order" means a task order issued under this Addendum. (A sample task order form is attached as Attachment A.) ii. "Custom Software" means all or any portion of the computer software code, components, dynamic link libraries (DLLs), and programs delivered on any media provided in source, object, or executable code format(s), inclusive of backups, updates, or merged copies permitted hereunder or subsequently supplied under any Task Order, exclusive of Software. iii. "Technical Data" means, without limitation, all technical materials and knowledge including formulas, compilations, programs, methods, techniques, know-how, technical assistance, processes or other similar information supplied or disclosed by ESRI under any Task Order. iv. "Tangible Deliverables" means deliverables created under any Task Order, exclusive of Software, Custom Software, and Technical Data, but includes maps and/or geographical data which results from the use of Custom Software, designs, schematics, user documentation, training documentation, specifications, drawings, flowcharts, briefings, test or quality control procedures or other similar information. v. "Data" means any ESRI or third party data vendor(s) digital data set(s) including, but not limited to, geographic, vector data coordinates, raster, or associated tabular attributes in ESRI GIS software compatible format(s) supplied under this Agreement. vi. "Deliverables" means Custom Software, Technical Data, Tangible Deliverables or Data specified for delivery or use by Licensee under a Task Order. vii. "Supported Software" means the Software identified pursuant to Article 2. ARTICLE 2—TASK ORDERS AND PROJECT SCHEDULE ESRI shall provide Deliverables as specified in Task Orders for support of the Software identified therein ("Supported Software"). Unless otherwise provided by ESRI in writing, ESRI's Professional Services Contract manager, John Perry, or his designee, is authorized to agree to Task Orders. The City Manager or his/her designee is authorized to sign Task Orders and bind Licensee. Each party may enter into Task Orders at its sole discretion and shall not have any obligation under a Task Order until it is signed by both parties. Each party shall identify in writing the project manager who is responsible for the Deliverables specified in Task Orders. By written notice, either party may replace the project manager at any time with a similarly qualified person. ESRI shall complete each Task Order in accordance with the schedule specified in that Task Order. ARTICLE 3—LICENSE GRANT Subject to the terms and conditions set forth in this Agreement and effective upon their delivery, ESRI hereby grants to Licensee a nonexclusive, fully paid-up, worldwide license in the Custom Software to use, modify, and reproduce the Custom Software source code in connection with Licensee's authorized use of Supported Software. The grant in the immediately preceding sentence does not apply to Data, which Licensee must separately and directly license from the vendor. Page 1 ESRI Agreement No. 2009NMA4448 E600M (SMK) 10/05 ARTICLE 4—PATENTS AND INVENTIONS During performance of Task Orders, the parties anticipate that inventions, innovations, and improvements ("Inventions") relating to the subject matter of such Task Orders may be conceived solely or jointly by principals, employees, consultants, or independent contractors (hereinafter called "Inventors") of the parties hereto. The parties agree that, as of the effective date of this Agreement, ESRI or its licensors own all intellectual property rights in the Software. During the term of this Agreement, Licensee shall promptly notify ESRI if Licensee becomes aware of any known or suspected infringement or violation of these rights. Each party shall retain title to any Inventions made or conceived solely by its Inventors during the term of this Addendum, including, but not limited to, such Inventions as ESRI's Inventors solely conceive while providing technical assistance pursuant to this Addendum. The parties shall jointly own any Invention made jointly by Inventors from both parties. With respect to such Inventions of Licensee relating to the Software, Licensee hereby grants and agrees to grant to ESRI an irrevocable, royalty -free, nonexclusive, worldwide right and license, with right to sublicense, use, make, sell, offer to sell, or import such Inventions for any purpose, whether or not patented in the country of such past or intended use. Licensee agrees to disclose promptly to ESRI (i) each Invention relating to the Software and made or conceived by Licensee's Inventors during the term of this Addendum and (ii) of any decision to file a patent application with respect to such Invention and the country or countries in which such application will be filed. Where only one party has title to an Invention, that party, at its sole discretion, shall have the right, but not the obligation, at its expense to: (i) decide on whether or not to seek or maintain, or to continue to seek or maintain, patent protection in any country on such Invention; (ii) decide the extent and scope of such protection; and (iii) protect and enforce in any country any patents issued on such Invention. All Inventions made by Inventors during performance of tasks and activities defined by Task Orders during the term of this Addendum will be presumed, absent clear and convincing evidence to the contrary, to have resulted from the Inventors' activities under the Task Orders. Neither party may license, transfer, sell, or otherwise alienate or encumber its interest in jointly owned Inventions without the written consent of the other party, which is hereby given to ESRI for Inventions relating to ESRI's commercial off the shelf software and shall otherwise not be unreasonably withheld by either party. However, either party may transfer such Inventions to its Affiliates for their internal use only. "Affiliate" shall mean the parent or subsidiary companies of a party or subsidiary companies to a party's parent provided there is more than fifty percent (50%) ownership of the subsidiary by the parent or party. ARTICLE 5—OWNERSHIP, CONFIDENTIALITY, AND EXPORT CONTROLS Except as specifically granted in this Addendum, ESRI or its licensors own and retain all right, title, and interest in the Custom Software. This Agreement does not transfer ownership rights of any description in the Custom Software to Licensee or any third party. Licensee owns and retains all right, title, and interest in the Tangible Deliverables provided by Licensee to ESRI under a Task Order. This Agreement does not transfer ownership rights of any description in the Tangible Deliverables provided by Licensee under a Task Order to ESRI or any third party. Unless otherwise agreed in writing, the Custom Software is ESRI confidential and Licensee shall preserve and protect its confidentiality. Insofar as its rights may be legally restricted, Licensee agrees not to reverse engineer or decompile the Custom Software delivered only in object code, executable code, or formats subject to similar orb eater means of access control (collectively, "Secure Formats"). For Custom Software delivered in source code or other human -readable formats, Licensee shall have met its obligations under this Article if its disclosure of Custom Software is limited to Secure Formats, provided that the means for reverse engineering, decompiling, or disassembling such Custom Software is withheld from such disclosure, and the person or entity in receipt of such Custom Software similarly agrees not to perform such acts or allow others to do so. Except as provided in the preceding paragraph, Licensee shall not disclose the Custom Software to employees or third parties without the advanced written consent of ESRI. However, Licensee may, without such consent, make such disclosures to Page 2 ESRI Agreement No. 2009WA4448 E600M (SMK) 10/05 employees as are reasonably required for the Licensee's authorized use of the Supported Software, provided that such disclosure is strictly limited to the portions of the Custom Software needed for that purpose. The disclosures permitted under the preceding paragraph shall not relieve Licensee of its obligation to maintain the Custom Software in confidence and comply with all applicable laws and regulations of the United States, including, without limitation, its export control laws. Furthermore, before disclosing all or any portion of the Custom Software to employees or third parties as permitted in the preceding paragraph, Licensee shall inform such employees or third parties of the obligations in this Article and obtain their agreement to be bound by them. Licensee shall not have any obligation to protect any part of the Custom Software that: (i) was in Licensee's possession before receipt from ESRI; (ii) is or becomes a matter of public knowledge through no fault of Licensee; (iii) is rightfully disclosed by a third party without a duty of confidentiality; (iv) is disclosed by ESRI to a third party without a duty of confidentiality; (v) is independently developed by Licensee; or (vi) is required to be disclosed by operation of law. Notwithstanding any other provision of this Addendum, ESRI understands that the Licensee is subject to, and shall fully comply with, the provisions of Chapter 119, Florida Statutes. ARTICLE 6—ACCEPTANCE A. For Time and Materials Task Orders Deliverables are provided strictly on a time and materials basis. Therefore, Licensee shall accept Deliverables as promptly as practicable after delivery, and Deliverables shall be deemed accepted thirty (30) days after delivery. B. For Firm Fixed Price Task Orders Deliverables for fixed price Task Orders shall be categorized as follows: i. "DELIVERABLE ACCEPTED" means a Deliverable conforming to applicable Task Order(s) with no more than minor nonconformities. Licensee shall complete its acceptance review within fifteen (15) working days of receiving each Deliverable. ii. "DELIVERABLE ACCEPTED WITH REWORK" means a deliverable substantially conforming to applicable Task Order(s), but having a significant number of identified nonconformities and accepted subject to rework by ESRI. ESRI shall rework the Deliverable for the identified nonconformities and resubmit it within thirty (30) days. Licensee will rerun its acceptance review for the nonconformities detected in the initial review within fifteen (15) working days of such resubmission and will reclassify the deliverable as either DELIVERABLE ACCEPTED or DELIVERABLE REJECTED. iii. "DELIVERABLE REJECTED" means a Deliverable that fails to substantially conform to applicable Task Order(s). ESRI shall rework the Deliverable and resubmit it to Licensee within thirty (30) days, at which time Licensee shall have fifteen (15) working days to rerun its acceptance review and reclassify the deliverable as either DELIVERABLE ACCEPTED or DELIVERABLE REJECTED. Licensee agrees it shall not use any Deliverable in its business operations before acceptance as described in Subsections B(i) or B(ii). If ESRI does not receive within fifteen (15) working days after delivery written notice that the Deliverable is "ACCEPTED WITH REWORK" or "REJECTED" in accordance with B(ii) or B(iii), or if Licensee uses the Deliverable in its business operations, the Deliverable shall be deemed, as of the first to occur of either of these events, to have been accepted. ARTICLE 7—CHANGES TO SCOPE OF WORK Licensee may, at any time, request changes within the general scope of an open Task Order. If the parties agree to such changes and such changes cause an increase or decrease in the cost or time required to provide a Deliverable under any Task Order (regardless of whether the Deliverable itself is changed), an equitable adjustment in the price or schedule, or both, shall be made, and this Agreement shall be modified accordingly in writing and signed by both parties. Page 3 ESRI Agreement No. 2009MPA4448 E600M (SMK) 10105 ARTICLE 8—COMPENSATION; INVOICES A. For Time and Materials Task Orders ESRI shall prepare and submit to Licensee written monthly invoices showing the compensation due for work performed under Task Orders. The amount invoiced will be equal to the number of hours expended during the previous month multiplied by the rates for labor categories set forth in Attachment B, plus other burdened direct costs. ESRI may, at its sole discretion, stop work in order to avoid exceeding the total value of applicable Task Orders. Any election to exceed such total value shall not affect the rights or obligations of the parties under this Agreement, including any right to compensation for such excess work and to stop work at anytime after such total value is exceeded. B. For Firm Fixed Price Task Orders ESRI shall prepare and submit monthly invoices based on the percent complete for each Deliverable as of the end of the preceding month. Upon acceptance of all Deliverables under a Task Order, the full amount of that Task Order is due. C. Payment Licensee shall pay each invoice no later than forty-five (45) days after receipt thereof. ARTICLE 9—REQUIRED CORRECTIONS AND LIMITED WARRANTY A. Correction of Deliverables and Warranty 1. For Time and Materials Task Orders: Not later than thirty (30) days after acceptance of a Deliverable, Licensee may require ESRI to correct or replace, at ESRI's option, Deliverables that at the time of delivery do not conform with the applicable written specifications included in, or delivered by ESRI pursuant to, the corresponding Task Order. The cost of replacement or correction shall be determined under the Time and Materials section of the Compensation; Invoices article of this Addendum. Not later than one (1) year after acceptance of a Deliverable, Licensee may require ESRI to correct or replace, without cost to the Licensee, nonconforming Deliverables, if the nonconformances are due to (i) fraud, lack of good faith, or willful misconduct on the part of an ESRI Professional Services Department employee. ESRI shall have no obligation or liability under this Agreement to correct Deliverables that were nonconforming at the time of delivery, except as provided in this Subsection A.1. 2. For Firm Fixed Price Task Orders: ESRI warrants that for a period of thirty (30) days after acceptance of a Deliverable that the Deliverable will conform, in a manner consistent with professional and technical standards in the software industry, with the applicable written specifications that are included in, or delivered by ESRI pursuant to, the corresponding Task Order. B. Disclaimer 1. THE REQUIRED CORRECTIONS AND WARRANTY SET FORTH IN SECTION "A" OF THIS ARTICLE ARE IN LIEU OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER OBLIGATIONS TO CORRECT OR REPLACE DELIVERABLES AND OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT DELIVERABLES ARE ERROR -FREE, WILL OPERATE WITHOUT INTERRUPTION, OR ARE COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; AND (ii) ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, SYSTEM INTEGRATION, AND NONINFRINGEMENT. IN ADDITION TO AND WITHOUT LIMITING THE PRECEDING PARAGRAPH, ESRI DOES NOT WARRANT IN ANY WAY THE MAP DATA, WHETHER SUPPLIED BY LICENSEE OR ESRI, OR THE VENDORS OF EITHER OF THEM. IF SUPPLIED BY ESRI OR ITS VENDORS, ESRI BELIEVES SUCH MAP DATA IS RELIABLE, BUT IT MAY NOT BE FREE OF NONCONFORMITIES, DEFECTS, ERRORS, OR OMISSIONS; BE AVAILABLE WITHOUT INTERRUPTION; BE CORRECTED IF ERRORS ARE DISCOVERED; OR MEET LICENSEE'S NEEDS OR EXPECTATIONS. ESRI IS NOT INVITING RELIANCE ON MAP DATA, AND LICENSEE SHOULD ALWAYS VERIFY ACTUAL DATA FROM DOCUMENTS OF RECORD, FIELD MEASUREMENT, OR OBSERVATION. Page 4 ESRI Agreement No. 2009WA4448 E600M (SMK) 10105 ARTICLE 10—LIMITATION OF LIABILITY A. Disclaimer of Certain Types of Liability IN NO EVENT SHALL ESRI OR ITS LICENSOR(S) BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS; LOST SALES OR BUSINESS EXPENDITURES; INVESTMENTS; OR COMMITMENTS IN CONNECTION WITH ANY BUSINESS, LOSS OF ANY GOODWILL, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE DELIVERABLES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT ESRI OR ITS LICENSOR(S) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. B. General Limitation of Liability IN NO EVENT WILL ESRFS TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE DELIVERABLES, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, EXCEED THE AMOUNTS PAID TO ESRI BY LICENSEE FOR THE DELIVERABLES FROM WHICH THE LIABILITY DIRECTLY AROSE. NOTWITHSTANDING THE FOREGOING, THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION B SHALL NOT APPLY TO CLAIMS FOR BODILY INJURY, DEATH OR PROPERTY DAMAGE CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF ESRI OR ITS SUBCONTRACTORS. NOTWITHSTANDING THE PREVIOUS SENTENCE, ESRPS LIABILITY FOR CORRECTION OF DATABASES IS LIMITED TO THOSE DATABASES THAT ARE BACKED UP BY LICENSEE AT LEAST ONCE PER WEEK. IF A USABLE, RECOVERABLE BACKUP EXISTS WITHIN THE PERIOD OF LESS THAN A WEEK, ESRFS LIABILITY FOR CORRECTIONS WOULD BE HELD TO THAT BACKUP. C. Applicability of Disclaimers and Limitations Licensee agrees that the limitations of liability and disclaimers set forth in this Agreement will apply regardless of whether Licensee has accepted the Deliverables or any other product or service delivered by ESRI. The parties agree that ESRI has set its prices and entered into this Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose or cause consequential loss), and that the same form an essential basis of the bargain between the parties. ARTICLE 11—HIGH RISK ACTIVITIES A. CUSTOM SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE FOR USE FOR INSURANCE UNDERWRITING OR WITH CRITICAL HEALTH AND SAFETY OR ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS THAT REQUIRE FAIL- SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, EMERGENCY RESPONSE, TERRORISM PREVENTION OR RESPONSE, LIFE SUPPORT, OR WEAPONS SYSTEMS ("HIGH RISK ACTIVITIES"). ESRI SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. B. Licensee represents and warrants that it will not use, distribute, or resell Custom Software for High Risk Activities and that it will ensure that its customers and end users of the Custom Software is provided with the notice in Section A of this Article. ARTICLE 12—TERM AND TERMINATION A. Term Unless terminated earlier pursuant to Section B or C of this Article, the term of this Addendum shall expire upon the later to occur of (i) the delivery of the last scheduled Deliverable as specified in the Task Orders executed under this Addendum or (ii) the expiration of a five (5) -year period commencing on the effective date of this Agreement. Page 5 ESRI Agreement No. 2009MPA4448 E600M (SMK) 10105 B. Termination for Convenience Licensee may terminate this Addendum or any Task Order at any time on thirty (3 0) days' written notice to ESRI and upon payment to ESRI of all amounts due to date pursuant to this Addendum, including reasonable termination expenses and the pro rata contract price for the Task Orders affected. C. Termination for Cause Either party, as applicable, shall have the right, in addition and without prejudice to any other rights or remedies, to terminate this Addendum or any Task Order as follows: i. By ESRI, at its sole discretion and without opportunity to cure, if (a) Licensee fails to pay after ten (10) days' written notice the amounts due to ESRI pursuant to the "Compensation; Invoices" article of this Addendum, (b) ESRI has terminated all or any part of this Agreement under any other of its provisions, or (c) Licensee engages in unauthorized use, reproduction, or disclosure of Deliverables. ii. By either party for any material breach of this Addendum that is not cured within fifteen (15) days of receipt by the party in default of a notice specifying the breach and requiring its cure. D. Obligations upon Termination Upon termination of this Addendum, the parties shall have no further obligations pursuant to its terms, except that Articles 4, 5, 8, 9B, and 10-14 shall survive termination. Unless Licensee has materially breached its obligations under this Agreement, Articles 3 and 9A shall also survive termination. ARTICLE 13—RESTRICTIONS ON HIRING Licensee shall not solicit for hire any ESRI employee who is associated with efforts called for under this Addendum during the term of this Addendum and for a period of one (1) year thereafter. ARTICLE 14—TAXES Licensee is a tax exempt entity and will provide ESRI with a tax exemption certificate if requested. ARTICLE 15—INDEPENDENT CONTRACTOR ESRI is, and at all times will be, an independent contractor. Nothing in this Agreement shall be deemed to create an employer/employee, principal/agent, or joint venture relationship. Neither party has the authority to enter into any contracts on behalf of the other party or otherwise act on behalf of the other party. ARTICLE 16—FORCE MAJEURE The obligations in this Addendum are subject to the "Force Majeure" article set forth in this Agreement. ARTICLE 17—COMMERCIAL TERMS AND CONDITIONS This Addendum contains ESRI's commercial terms and conditions. Licensee's rights in the Deliverables are strictly limited to the uses granted by this Addendum. In the event any court, arbitrator, or board holds that the U.S. Government has greater rights to any portion of the Deliverables, such rights shall extend only to the portion(s) affected, and use, duplication, or disclosure by the U.S. Government is subject to restrictions as provided in DFARS, ¢227.7202-1(a) and §227.7202-3(a) (1995), DFARS §252.227-7013(c)(1)(ii) (OCT 1988), FAR §12.212(a) (1995), FAR §52.227-19 (June 1987), or FAR §52.227-14 (ALT III) (June 1987), as applicable. ARTICLE 18—DISPUTES ESRI and Licensee will attempt to settle any claim or controversy arising from this Agreement (except for a claim relating to intellectual property) through consultation and negotiation in good faith and a spirit of mutual cooperation. The respective project managers will confer and attempt to settle disputes. The dispute will be escalated to appropriate higher-level managers of the parties, if necessary. If cooperative efforts fail, the dispute will be mediated by a mediator in Miami -Dade County Page 6 ESRI Agreement No. 2009NTA4448 E600M (SMK) 10/05 chosen jointly by the Licensee and ESRI within twenty-two (22) Days after notice by one of the parties demanding non- binding mediation. Licensee and ESRI will not unreasonably withhold consent to the selection of a mediator, and they will share the cost of the mediation equally. The parties may postpone mediation until they have completed some specified but limited discovery about the dispute. The parties may also replace mediation with some other form of non-binding alternative dispute resolution ("ADR") within Miami -Dade County. Any claim relating to intellectual property and any dispute that cannot be resolved between the parties through negotiation or mediation within two (2) months after the date of the initial demand for non-binding mediation as described above shall then be submitted by either party to a court of competent jurisdiction located in Miami -Dade County, Florida. Each party consents to jurisdiction over it by such a court. The use of ADR procedures will not be considered under the doctrines of laches, waiver, or estoppel to affect adversely the rights of either party. Either party may resort to the judicial proceedings described in this section before the expiration of the two-month ADR period if (i) good faith efforts to resolve the dispute under these procedures have been unsuccessful; or (ii) interim relief from the court is necessary to prevent serious and irreparable injury to such party or any of its affiliates, agents, employees, customers, suppliers, or subcontractors. Performance by the parties under this Agreement shall not be suspended during the resolution of any dispute unless the parties agree otherwise. Page 7 ESRI Agreement No. 2009WA4448 E600M (SMK) 10105 ATTACHMENT A SAMPLE TASK ORDER ESRI Agreement No. Task Order No. In accordance with the terms and conditions of the above -referenced Agreement between Environmental Systems Research Institute, Inc. (ESRI), and (Licensee), this Task Order authorizes delivery of the Deliverables described and in accordance with the terms, schedule, and start/end date(s) specified below. 1. Scope of Work: [As applicable, specifically identify and describe Deliverables including Custom Code, Data, and Technical Data (including Technical Assistance), Supported Software, and the resources to be provided by Licensee (including Licensee -supplied personnel, software, hardware, and digital or hard -copy data), and place of delivery and location where technical assistance will be provided.] In addition to the foregoing, Licensee agrees that its employees, representatives, and subcontractors will cooperate and communicate with ESRI during performance of this Task Order. Without cost to ESRI, Licensee shall provide, allow access to, or assist ESRI in obtaining all data ESRI requests for performance of this Task Order, including, but not limited to, (1) copies of previously prepared reports, maps, plans, surveys, records, and other documents in the control or possession of Licensee and (2) copies of ordinances, codes, regulations, or other governmental documents. 2. Contract Type (FFP or T&M): 3. Total Task Order Value or Not -to -Exceed Value (if time and materials basis): 4. Delivery Schedule or Start/End Date(s) for Each Deliverable: 5. Special Considerations: 6. ESRI Project Manager: ESRI Senior Contract Administrator: ACCEPTED AND AGREED: (Licensee) Signature: Printed Name: Title: Date: ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. (ESRI) Signature: Printed Name: Title: Date: Page 8 ESRI Agreement No. 2009MPA4448 E600M (SMK) 10105 ATTACHMENT B TIME AND MATERIALS RATE SCHEDULE Effective January 1, 2009 Hourly time and materials labor rates have been provided for each labor category for calendar year 2009. The hourly labor rates for services that are performed after 2009 may be escalated in an amount not to exceed five percent (5%) each year. Other direct costs, such as travel, reproduction, subcontractor, telecommunication/freight, or materials, will be charged a material handling fee and invoiced. Principal GIS Consultant/Program Manager Hourly Rate: $349/Hour Staff in this labor category work as Program Directors or Project Advisors providing project vision, strategic consulting, and program management activities for Geographic Information Systems (GIS) and Information Technology (IT) projects. These staff members apply market/application domain expertise using extensive experience in GIS and related geo-spatial technologies to support the successful completion of the program. Consulting activities may include strategic planning, review and oversight of requirements definition, application and database design, and system integration consulting. Management activities may include defining program requirements and objectives, establishing budgets and schedules, allocating staff and other resources, and managing and overseeing subcontractor activities. Staff in this labor category work with senior client staff in coordination with ESRI senior management to resolve issues and support successful project completion. Senior GIS Consultant/Project Manager Hourly Rate: $264/Hour Staff in this labor category work as Project Managers or Project Advisors providing strategic consulting and project management activities for GIS and IT projects. These staff members have market/application domain expertise using extensive experience in GIS and related geo-spatial technologies to support the successful completion of a project. Consulting activities may include strategic planning, GIS workshops and seminars, requirements definition, application and database design and system integration consulting. Management activities may include defining project requirements and objectives, establishing budgets and schedules, allocating staff and other resources, and managing and overseeing subcontractor activities. These individuals may also design comprehensive work plans that employ standard system methodologies that define project deliverables and milestones and realistic schedules. GIS Consultant/Project Manager Hourly Rate: $210/Hour Staff in this labor category provides day-to-day consulting and management for contracted projects within ESRI. These individuals work under guidance of senior ESRI managers described above and support the design and implementation of project work plans. These staff members may provide consulting services and design and management support to software application development projects and database conversion projects. They may also conduct detailed requirements interviews, document application requirements, develop logical and physical database designs using standard engineering diagramming methodologies, design software and database QA/QC programs, and provide management oversight of daily technical activities. These staff members work with senior consulting and technical staff to design comprehensive work plans that employ standard system methodologies that define project deliverables, milestones and realistic schedules. These individuals work with ESRI administrative staff to ensure that progress and financial reporting are provided according to contract requirements. Senior GIS System/Software Architect Hourly Rate: $272/11our Staff in this labor category provides the overall technical vision and system architecture for large, complex systems. They support the application of sound software engineering principles and life -cycle methodologies to programs/projects. This staff is actively involved in systems architecture design, application software design, database process design, and the directing of Page 9 ESRI Agreement No. 2009MPA4448 E600M (SMK) 10105 coding development, including the supervision of design and code reviews. These staff may serve as the Principal Investigator in focused studies or research and development projects. Individuals in this labor category have broad technical knowledge of GIS applications and related information technologies, and they may also provide specific expertise in areas such as web -based software applications, services oriented architectures, data warehousing, spatial analysis, and modeling. As a group, these staff members are proficient with ESRI Commercial Off the Shelf (COTS) software products, software and database design methodologies, web, desktop and server software development languages, geospatial data formats, and other technologies. GIS System/Software Developer Hourly Rate: $221/Hour Staff in this labor category supports the design of technical project specifications for the implementation of application software projects and database development projects. They support the day-to-day technical activities of the project team and ensure that standard system methodologies are employed. They also perform detailed software design and detailed database conversion design, and are directly involved in the coding and implementation of complex and strategic portions of application software and database conversion projects. As a group, these staff members are proficient in ESRI Commercial Off the Shelf (COTS) software products, web, desktop and server software development languages, geospatial data formats and other technologies. These staff members design and develop QA/QC programs and support design and code reviews, database reviews, and other QA/QC activities throughout the project life cycle. GIS Technical Specialist/Engineer Hourly Rate: $171/Hour Staff in this labor category work collaboratively with software designers to perform software coding and writing software documentation according to design specifications developed by senior technical staff described above. As a group, these staff members are experienced in the coding of software, the creation of digital databases, and in software development associated with ESRI's Commercial Off the Shelf (COTS) software products, web, desktop or server software development languages, geospatial data formats and other technologies. This staff also develops effective database designs, implement data conversion processes and procedures, and perform software and database quality control. GIS Database Specialist/Analyst Hourly Rate: $I45/Hour Staff in this labor category provides database development support in creating cartographic and digital data products. These staff members have expertise that includes the performance of hard copy to digital data conversion tasks, data migration, and translation activities utilizing advanced processing techniques in ArcGIS. These individuals design, develop, and implement efficient production tools and work flows in accordance with approved project plans and design parameters. Page 10 ESRI Agreement No. 2009MPA4448 E600M (SMK) 10105