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HomeMy WebLinkAboutResolution - 2012-R0489 - Contract - Environmental Systems Research Institute Inc.- GIS Mapping Services - 12_17_2012Resolution No. 2012-RO489 December 17, 2012 Item No. 5.11 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Contract No. 11105 for Enterprise License Agreement for GIS Mapping Services, by and between the City of Lubbock and Environmental Systems Research Institute, Inc. of Redlands, California, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on December 17, 2012 ATTEST: Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: �Y Mark Learwo-8d, Assistant City Manager Chieformation Officer APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vw:ccdocs/RES.Contract-Environmental Systems November 30, 2012 Resolution No. 2012-RO489 • Contract: 11105 �� � �� ENTERPRISE 19GE0NSE0 9GREEMENT Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2863 • FAX 909-793-5953 Agreement No. 2012ELA7699 This Enterprise License Agreement including the documents listed below (collectively, "Agreement" or "ELA") is between City of Lubbock Texas ("City"), with its main offices located at 1625 13°h Street, Lubbock. Texas 79401 and Environmental Systems Research Institute, Inc. ("Esri"), and is effective as of the later date of the signatures below when signed by both parties ("Effective Date"). This Agreement provides for the licensing and deployment of certain Esri Software, delivery of ELA maintenance, and provision of Esri International User Conference registrations and any additional services as specified herein. This Agreement is comprised of the following documents which are incorporated herein by reference: 1. Enterprise License Agreement signature page(s), El 19 2. Enterprise License Terms and Conditions, E512, including; ■ Appendix A, Software and Deployment Schedule ■ Appendix B, Enterprise License Fee Schedule ■ Appendix C, City Annual Deployment Report ■ Appendix D, ELA Points of Contact ■ Appendix E, Tier I Help Desk Authorized Individuals ■ Appendix F, Eligible Agencies 3. License Agreement —Agreement No. 2012MLA7699 ■ General License Terms and Conditions, E200 • Esri Exhibit 1, Scope of Use, E300 Note: Licensee is defined on first page of item 2 above. 4. Esri Enterprise Advantage Program (EEAP- No. 2012EAP7699) The parties acknowledge that they have read and understand this Agreement and agree to be bound by the terms and conditions contained herein. This Agreement constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous agreements, proposals, presentations, understandings, and arrangements between the parties relating to such subject matter. Any modifications or amendments to this Agreement must be in writing and signed by an authorized representative of each party. ACCEPTED AND AGREED: CITY OF LUBBOCK TEXAS (City) By: Aut tzed Signature Printed Name: Glen C. Robertson Title: MUor Title: Manager, Domestic Contracts Date: _ l �% l �`- Date: November 19, 2012 E119G Page I of44 06/2009 ENTERPRISE LICENSE AGREEMENT Agreement No. 2012ELA7699 ATTEST: Rebe ca Garza, City Secretary APPROVED AS TO CONTENT: Mar�flnformation ear ood, As istant City Manager/ ChieOfficer ZZ= Chad Weaver, Assistant City Attorney ARTICLE 1—DEFINITIONS All definitions in other parts of the ELA will have the same meaning in this Enterprise License Terms and Conditions. In addition, the following definitions apply to the ELA: ■ "Deploy," "Deployment," or "Deployed" means to redistribute, or the redistribution of, the Enterprise License Software (and its related keycodes/registration files), or its having been redistributed, by City, during the term of this ELA for installation and use by Licensee. ■ "ELA Fee" means the fee set forth in Appendix B, ELA Fee Schedule. ■ "ELA Maintenance" means Tier 2 Support, updates, and patches provided by Esri for Enterprise License Software and Rolled -In Software. ■ "Eligible Agency" means the City Agencies (e.g., department, board, or commission) that are identified in Appendix F as eligible to participate under this ELA. ■ "Enterprise License Software" means the Software (which includes Data, Web Services, and Documentation provided with the particular item as separately licensed) identified in Table A-1 and Table A-2 of Appendix A, Software and Deployment Schedule. Enterprise License Software does not include unit priced item(s) or Esri technology that may be embedded in third -party products purchased by Licensee. ■ "Incident" means a failure of the Software to operate according to the Documentation where such failure substantially impacts operational or functional performance. ■ "License Agreement" means the General License Terms and Conditions (E200) and Exhibit 1, Scope of Use (E300), referenced on the signature page of this ELA. ■ "Licensee" means City's Eligible Agency. For avoidance of doubt, the definition of Licensee will not include consultants or contractors. Licensee does not include entities added due to acquisition of a power or water utility company or district. A School District or Library Licensee shall limit the use of Licensed Software to internal administrative use only. ■ "Technical Support" means a process to attempt to resolve reported Incidents through error correction, patches, hot fixes, and workarounds; replacement deliveries; or any other type of Software, Data, or Documentation corrections or modifications specified in the most current applicable Esri US Software Maintenance Program. ■ "Tier I Help Desk" means City point of contact from which all Tier 1 Support will be given to Licensee. ■ "Tier I Support" means the Technical Support provided by the Tier 1 Help Desk as the primary contact to Licensee in its attempted resolution of reported Incidents. ■ "Tier 2 Support" means the Technical Support provided by Esri to the Tier 1 Help Desk when the Incident cannot be resolved through Tier I Support. ARTICLE 2---GRANT OF LICENSE 2.1 Grant of License. Licensee's use of the Enterprise License Software is subject to the License Agreement and any additional terms set forth in this Article 2 and in Article 3 below. 2.2 Beta License. Beta licenses are not available under this ELA as Enterprise License Software. Beta Software, Beta Data, and Beta Web Services, if requested and provided, will be licensed separately and individually under the terms of the License Agreement (see Beta License in Section 3.2 of the General License Terms and Conditions—E200) only. No other benefits, grants, or rights provided in this ELA shall apply or be provided/granted. 2.3 Consultant Access. Section 3.4, Consultant Access, of the General License Terms and Conditions—E200 in the License Agreement is modified to add the following restriction: Access to and use of any Enterprise License Software is restricted to use by consultants and contractors for the sole benefit of Licensee while (i) working on -site at Licensee's facilities; (ii) remotely accessing or using Enterprise License Software from Licensee's on -site computers or machines; or (iii) remotely accessing or using Enterprise License Software from a third party's computers or machines under contract to Licensee. Licensee shall require consultant or contractor to discontinue access to and use of Enterprise License Software upon completion of work for Licensee. 2.4 City Responsibility. City shall remain primarily responsible to Esri for compliance by Licensees (including their users) with the terms and conditions of this ELA. Prior to the deployment to any Eligible Agency, City shall provide each such Eligible Agency (Licensee) with a copy of the License Agreement and flow down appropriate terms in Artilce(s) 2 and 3. City represents and warrants that it has the authority to bind each Eligible Agency to the terms and conditions of the License Agreement. (2012MLA7699). E512G Page 2 of 44 01 / M2012 ARTICLE 3—SCOPE OF USE There are additional Permitted Uses, Uses Not Permitted, and Restrictions for City and Licensee incorporated into this ELA. The Permitted Uses and Uses Not Permitted sections of the General License Terms and Conditions portion of the License Agreement are modified to include the additional term in Sections 3.1 and 3.2 below: 3.1 Additional Permitted Uses. The following additional Permitted Uses are hereby granted to City for the Enterprise License Software: For the term of the ELA, City may copy and Deploy the Enterprise License Software to Licensees up to the quantities of licenses granted in Appendix A. No other Licensee has a right to copy (except as permitted in the License Agreement) or Deploy the Enterprise License Software. 3.2 Uses Not Permitted. In addition to the restrictions set forth in the License Agreement, the following Uses Not Permitted apply to the Enterprise License Software: a. City shall not transfer, redistribute, or Deploy the Enterprise License Software outside the United States or its territories or possessions without the prior written permission of Esri and agreement on additional fees, if any. b. Licensee shall not use the Enterprise License Software outside the United States or its territories or possessions without the prior written permission of Esri and agreement on additional fees, if any. Any such export will be subject to US Export Control Regulation requirements of the License Agreement. c. Licensee shall not transfer, redistribute, or assign Enterprise License Software to any third party without prior Esri written permission. 3.3 Additional Restrictions Applicable to ELA and License Agreement. A new or additional Eligible Agency may not be added as an ELA participant or Licensee without the express prior written approval of Esri. Addition of an Eligible Agency may result in an increase in the ELA Fee. ARTICLE 4—MAINTENANCE ELA Maintenance. ELA Maintenance is included in the ELA Fee. Rolled -In Software and Enterprise License Software will receive ELA Maintenance, provided that standard maintenance is available for each item. ELA Maintenance includes benefits specified in the most current applicable Esri US Software Maintenance Program document (found at www.esri.coni+leeal) as modified by this Section 4.1. a. Tier I Support Provided by City (1) Tier I Help Desk will provide Tier I Support to all Licensees. (2) The Tier 1 Help Desk will use analysts fully trained in the Software they are supporting. (3) At a minimum, Tier 1 Support will include those activities that assist the user in resolving how-to and operational questions as well as questions on installation and troubleshooting procedures. (4) Tier l Support analysts will be the initial points of contact for all questions and Incidents. Tier I Support analysts shall obtain a full description of each reported Incident and the system configuration from the Licensee. This may include obtaining any customizations, code samples, or data involved in the incident. The analyst may also use any other information and databases that may be developed to satisfactorily resolve Incidents. (5) If the Tier I Help Desk cannot resolve the incident, an authorized Tier 1 Help Desk individual may contact Esri for Tier 2 Support. The Tier 1 Help Desk shall provide support in such a way as to minimize repeat calls and make solutions to problems available to Licensee. (6) City may assign up to the quantity of named Tier 1 Help Desk individuals listed in Appendix B. These individuals will be identified in Appendix E and are the only individuals (callers) authorized to contact Esri directly for Tier 2 Support. b. Tier 2 Support Provided by Esri (1) Esri shall log the calls received from the Tier I Help Desk individuals. (2) Esri shall review all information collected by and received from Tier 1 Help Desk individuals including preliminary documented troubleshooting provided by Tier 1 Help Desk when Tier 2 Support is required. E512G Page 3 of 44 01/19/2012 (3) Esri may request that Tier I Help Desk individuals provide verification of information, additional information, or answers to additional questions to supplement any preliminary information gathering or troubleshooting performed by Tier 1 Help Desk. (4) Esri shall attempt to resolve the Incidents submitted by Tier 1 Help Desk by assisting the Tier 1 Help Desk individuals and not the Licensees. (5) When the Incident is resolved, Esri shall communicate the information to the Tier l Help Desk individuals, and the Tier 1 Help Desk shall disseminate the resolution to the Licensee. (6) Esri may, at Esri's sole discretion, make patches, hot fixes, or updates available for downloading from Esri's website or, if requested, deliver them on media. ARTICLE 5—ORDERING, ADMINISTRATIVE PROCEDURES, DELIVERY, AND DEPLOYMENT REPORT 5.1 Purchase Orders, Delivery, and Deployment a. City shall issue a purchase order upon execution of the ELA and annually thereafter in accordance with the fee schedule in Appendix B. These fees will be due and payable within thirty (30) days of the anniversary date of the ELA, with the initial payment due within thirty (30) days of execution of the ELA. b. Upon receipt of the initial purchase order from City, Esri shall authorize City to download Enterprise License Software listed in Appendix A. Delivery of updates/new versions of Enterprise License Software will be made in the same manner. If requested by City, Esri will deliver a limited number of sets of backup media as provided in Appendix B to the ship -to address identified in Appendix D, ELA Points of Contact, FOB destination with shipping charges prepaid. City may purchase additional backup media sets at the prices in effect at the time of purchase. Delivery or receipt of tangible media could cause prior and future license fees to be subject to taxes. City acknowledges that Esri has a right to invoice, and City agrees to pay any such sales or use tax associated with receipt of tangible media. c. Esri shall provide registration/authorization numbers or access codes, as applicable, to activate the nondestructive copy protection program that enables the Enterprise License Software to operate or allow access. d. City shall track the Deployment status of Enterprise License Software, 5.2 Purchase Order Requirements a. Any purchase orders issued by City will reference, incorporate, and be subject to the terms and conditions of this ELA. No additional, conflicting, or different terms contained in a purchase order or ordering document will be binding. All orders and deliveries pertaining to this ELA will be processed through City's centralized point of contact. b. The following information will be included in each purchase order: (1) Esri customer number and the ship -to address as identified in Appendix D. (2) Purchase order number. (3) Applicable annual payment due. (4) On the face of the purchase order, print the following statement: "Governed by and subject to Enterprise License Agreement No. 2012ELA7699." 5.3 Annual Report of Deployments. At each anniversary date and ninety (90) days prior to the expiration date of this ELA, City shall provide a written report, as set forth in Appendix C, to Esri detailing all Deployments made. The report will be subject to audit by an authorized representative of Esri. 5.4 Esri International User Conference Registration. Esri shall provide Esri International User Conference registrations to City annually during the term of this ELA in the quantities set forth in Appendix B. City is responsible for distributing the registrations to Licensees. Third parties may not represent or attend on behalf of City or Eligible Agencies at any Esri International User Conference, ARTICLE 6—POINTS OF CONTACT; NOTICES 6.1 Points of Contact. Each party shall identify points of contact for administrative and technical issues in Appendix D. 6.2 Notices. Except as set forth in Section 6.1, any notice, report, demand, or other communication will be properly given when made in writing in English and sent by courier; registered or certified airmail; or facsimile or other electronic transmission, and confirmed by courier or by registered or certified airmail, properly addressed to the appropriate party at the address set forth above, until changed by notice in writing by either party hereto. If sent by courier or airmail, notice will be E5120 Page 4 of 44 01/19/2012 effective seven (7) days from the date of deposit with the courier service or post office. If sent by electronic transmission, notice will be effective upon receipt, provided confirmation is given as specified herein. Notices will be given at the following addresses: To: Esri To: City 380 New York Street as listed in Appendix D Redlands, CA 92373-8100 Attn.: Manager, Contracts and Legal Services ARTICLE 7—TERM, TERMINATION, AND EXPIRATION 7.1 Term. The term of the ELA will be for the period listed in Appendix B, commencing on the Effective Date unless this ELA is terminated earlier as provided herein. 7.2 Termination for a Material Breach. Esri may terminate this ELA for a material breach by Licensee. Licensee will be given a period of thirty (30) days from date of written notice to cure any material breach. Upon termination of this ELA by Esri for a material breach by Licensee, all licenses Deployed will also terminate, and the full amount of unpaid ELA Fees will be due and payable by City within thirty (30) days from the date of termination. Licensees shall uninstall, remove, and destroy all Enterprise License Software; training materials; and any whole or partial copies, modifications, or merged portions in any form. City shall deliver evidence of such destruction to Esri (e.g., certification letter). Licensee may continue to use Rolled -In Software, provided Licensee complies with the terms and conditions of the License Agreement. Further, Esri agrees that Licensee is not required to pay a maintenance reinstatement fee for lapsed maintenance for Rolled -in Software if Licensee orders maintenance at time of ELA termination. Other items that may be included in this ELA such as EAP, Virtual Campus annual user license, access codes, Virtual Campus dollar credits, and Esri International User Conference registrations, will also terminate if this ELA is terminated. 7.3 Termination of a Particular Eligible Agency. Esri may elect to terminate the license rights of a particular Eligible Agency for material breach without terminating this ELA with City or other Eligible Agencies. The breaching Eligible Agency will be given a period of ten (10) days from date of written notice to cure any material breach. Upon the termination of the Eligible Agency, any licenses for Deployments provided to Eligible Agency will also terminate. City shall reasonably cooperate with Esri in termination of an Eligible Agency in material breach of this ELA, including enforcement of the ELA with respect to such Eligible Agency. There will be no reduction in the ELA Fee if an Eligible Agency's rights are terminated. The terminated Eligible Agency will have no further access to any benefits, entitlements, rights, or other items included in or otherwise related to this ELA. 7.4 License Term and Use upon Expiration of ELA Term. Upon full payment of the ELA Fee and expiration of this ELA, the License Agreement will survive, and Licensee may continue to use the Deployed Enterprise License Software and Rolled -In Software in accordance with the terms and conditions set forth in the License Agreement. Licensee shall notify Esri of the quantity and type of licenses for which Licensee elects to purchase standard maintenance. If maintenance is not ordered for Rolled -In Software or Enterprise License Software upon expiration of the ELA, it lapses. If, at a later date, Licensee decides to reinstate maintenance, Licensee must pay maintenance reinstatement fees from the date of ELA expiration (e.g., back maintenance fees). City shall not Deploy additional copies of the Enterprise License Software beyond the quantities in use upon termination or as of the date of expiration. ARTICLE &—CONFIDENTIALITY Esri Confidential Information. Certain terms and conditions of this ELA are confidential and proprietary information of Esri. Except as provided herein, City shall not publish or disclose the ELA (or contents) to any third party without Esri's prior written consent. City may disclose portions or all of this ELA to an Eligible Agency provided such Eligible Agency is under an obligation of confidentiality to not publish or disclose this ELA (or contents) to any third party. Disclosure may be made only to those City or Eligible Agency employees and advisers of City (e.g., outside counsel or accountants) who have a need to know to perform their duties and have an obligation of confidentiality. City or Eligible Agency may only disclose the License Agreement and restrictions contained in the ELA to a contractor or consultant who has a need to know such information to perform work on behalf of City or Eligible Agency. No other portions of the ELA may be disclosed to a contractor or consultant. To the extent that any such disclosures may be required by law (such as an open/ public records request), City shall inform Esri of the requested disclosure, with a reasonable description of the requested disclosure and identification of the requestor, in sufficient time for Esri to assert any objection Esri may have to such disclosure with the appropriate administrative or judicial body. E512G Pace 5 of 44 01/19/2012 ARTICLE 9—RELATIONSHIP OF THE PARTIES The ELA does not constitute a partnership, joint venture, or agency between Esri and City. Neither Esri nor City will hold itself out as such, nor shall Esri or City be bound or become liable because of any representation, action, or omission of the other. ARTICLE 10—FORCE MAJEURE If the performance of any obligation under this ELA 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 requirement of any government agency; or any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, will be provided a temporary extension for a period of time as may be reasonably necessary to allow for such delay, prevention, interference, or restriction. ARTICLE I1—GIS STANDARD City shall act as a reference for other Esri customers and potential customers as long as the ELA remains in effect. This ELA will not be construed or interpreted as an exclusive dealings agreement, and City and each Eligible Agency reserve the right to purchase from third parties any of their requirements for GIS software, or related services. City agrees that Esri may publicize the existence of the ELA. ARTICLE 12—ADMINISTRATIVE REQUIREMENTS 12.1 Esri Partner Original Equipment Manufacturer (OEM) Bundled or Embedded Items/Services. Certain Esri partners are authorized to either embed limited portions of Esri technology or bundle Esri products or services with the partner's application or service under Esri's OEM or Solution OEM programs. Partner pricing and product bundling is independent of this ELA, and each partner markets under its own business model and pricing. Licensee shall not be entitled to or seek any discount from the OEM business partner or Esri, directly or indirectly, as a result of or based upon the availability of such Software, Data, Web Services, or Documentation as Enterprise License Software under this ELA. Licensee shall not be entitled to or seek to decouple Esri's technology or products/services from the partner's bundle or solution. In addition, such Software, Data, Web Services, Documentation, or any component thereof included in the OEM software program or product will be licensed through the license agreement provided by the OEM business partner and not through this ELA. 12.2 Enterprise License Software —Limited Quantity. Esri reserves the right to exclude new Software products from unlimited Deployment. New Software products may contain or be developed with (i) newly acquired technology obtained through a significant investment or (ii) third -party intellectual property that requires a unit -based royalty fee or prohibits Deployment under a site or enterprise license. Such items can be made available to City on a limited quantity basis or as unit - priced items. 12.3 Obsolescence. During the term of this Agreement, some of the items listed in Appendix A may become obsolete or will no longer be commercially offered or may no longer be available for Deployment. Licensee may continue to use Enterprise License Software that has been Deployed, but support and upgrades for older items may not be available. ELA Maintenance and maintenance and availability of Enterprise License Software identified in Appendix A will be subject to each item's Product Life Cycle Support Status, which can be found at http-//resources.aregis.com/content/product-life-cycles by selecting the product type and clicking the Product Life Cycle link for specific product plans. Esri's Product Life Cycle Support Policy, available at hgp://help.arcgis.com/en/shared/product-life-cycle/ProductLifeCycle.pdf, covers the support phases and overall support plans. ARTICLE 13--GENERAL PROVISIONS 13.1 The General Provisions and Limitations of Liability of the License Agreement will apply to the entire ELA. If there is a conflict among any of the other terms and conditions in the various documents, the order of descending precedence will be as follows: (1) E119 Signature Page, (2) E512 ELA Terms and Conditions, (3) E300 Scope of Use, and (4) E200 General ES12G Page 6 of 44 01/19/2012 License Terms and Conditions. In the event this ELA includes Enterprise Advantage Program, the terms and conditions of the Enterprise Advantage Program Addendum will take precedence over the provision of the ELA with respect to the Enterprise Advantage Program. Except as otherwise expressly provided herein, any amendment or Addendum to this ELA must be in writing and signed by an authorized representative of each party. 13.2 Survival of Certain ELA Clauses. The provisions of Section 7.4 and Article 8 of this Enterprise License Terms and Conditions document (E512) will survive the expiration or termination of this ELA. E512G Page 7 of 44 01/1QP7012 APPENDIX A SOFTWARE AND DEPLOYMENT SCHEDULE City may Deploy the Enterprise License Software up to the total quantity of licenses indicated below to Licensees during the term of this ELA. Table A-1 Enterprise License Software --Unlimited Quantities Item Total Qty./Seats to Be Deployed ArcGIS for Desktop Software Basic, Standard and Advanced (Single and Concurrent Use) Unlimited ArcGIS for Desktop Software Extensions Spatial Analyst, 3D Analyst, Network Analyst, Geostatistical Analyst, Publisher, Schematics, Workflow Manager, and Data Reviewer (Single and Concurrent Use) Unlimited ArcGIS for Server Basic, Standard and Advanced (Workgroup and Enterprise Editions) Unlimited ArcGIS for Server Extensions 3D, Spatial, Network, Geostatistical, Schematics, Image and Workflow Manager Unlimited Esri Production Mapping Unlimited ArcGIS Engine Runtime ArcGIS Engine Runtime Extensions- Spatial, 3D, GeoDatabase Update, Network and Schematics Unlimited AreGIS Runtime Standard (when available) Including, Spatial Analyst, Network Analyst and 3D Analyst Extensions. Unlimited Table A-2 Enterprise License Software —Limited Quantities Qty./Seats Item to Be Deployed Total Esri Developer Network (EDN) 2 Annual 2 Annual Subscriptions Subscriptions Esri CityEngine Advanced (Single Use License) I 1 ArcGIS Data Interoperability Extension for Desktop 2 2 (Concurrent Use Licenses) Item Named Users Annual Credits ArcGIS Online Subscription 100 named users 17,500 E512G Page 8 of 44 01/19/2012 APPENDIX B ELA FEE SCHEDULE The ELA Fee is $525,000.. The ELA Fee is in consideration of the Enterprise License Software, ELA Maintenance, Esri International User Conference registrations, and Esri Enterprise Advantage Program. Payment Terms: The Year 1 payment will be due and payable within 30 days of the Effective Date. Year (s) 1 and 2 payments will be due and payable within 30 days of each anniversary date of the ELA. Year 1 Year 2 Year 3 ELA Fee Payments $125,000. $200,000. $200,000. $525,000. One (1) Enterprise Advantage *Includes 200 *Includes 100 *Includes 50 Total Program (EEAP) Learning and Learning and Learning and 350 Learning and annual subscription Service credits Service credits Service credits Service credits (includes up to 100 Technical Advisory Hours each year) 'Note: Unused Learning and Services Credits expire six months after expiration of the ELA, if it is not renewed. The purpose of the Learning and Services Credits is to provide review of technology strategy; systems design review, non - production prototyping, and other general technical consulting services support activities. These credits are not intended for use on project specific Professional Services (i.e., custom application services or database development). Any project -related activities requiring Esri's Professional Services will be scoped, budgeted, and scheduled outside of the EEAP. Activities proposed to be completed under the EEAP would be subject to review and approval by Esri to ensure alignment with the intent of the EEAP. Details regarding EEAP are provided at http://www.esri.com/smices/eeap/inde)Lhtrni. Number of Esri International User Conference Registrations per Year 5 Number of Tier 1 Help Desk Individuals 4 Number of Sets of Backup Media, if Requested 5 Support Incidents for Esri Developer Network (EDNZ One-10 Pack per year 3 Years from Term of ELA pursuant to Section 7.1 Effective Date E512G Page 9 of 44 01/19/2012 APPENDIX C CITY ANNUAL DEPLOYMENT REPORT SAMPLE REPORT —This report will be provided to Esri annually as an Excel spreadsheet or in a comparable format. Date PRODUCT Use Texas Server E512G Page 10 of 44 01/19/2012 APPENDIX D ELA POINTS OF CONTACT Either party may change its point of contact by written notice to the other party. . Esri point of contact for order processing issues: Name: Customer Service Esri Redlands 380 New York Street Redlands, CA 92373-8 i 00 E-mail: servicenesri.com Phone: 888-377-4575 Fax: 909-307-3083 2. Esri contact for Tier 2 Support issues: E-mail: supportrra_esri.com Phone: 909-793-3774 (domestic US only) Fax: 909-792-0960 Web: supportra�esri.com 3. City centralized point of contact for order release and administrative issues: Name: Sally Still Abbe E-mail: sabbe@mylubbock.us Phone: (806) 775-2106 Fax: n/a 4. All deliverables to City will be shipped to the address listed below: City Office: Information Technology Name: c/o Toby Trimble Address: 1611 10" St. Lubbock, TX 79401 5. All notices to City will be mailed to the address listed below: Name: Sally Still Abbe E-mail: sabbe@mylubbock.us Phone: (806) 775-2106 Fax: n/a E512G Page I 1 of 16 01/19/2012 APPENDIX E TIER 1 HELP DESK AUTHORIZED INDIVIDUALS Below are named Tier 1 Help Desk individuals authorized to seek Tier 2 Support from Esri. SubstituteslChanges to Tier 1 Help Desk authorized individuals may be made by written notice to Esri. 1. Name: Susan Nii 'hara Address: PO Box 2000 Lubbock, TX 79457 Phone: (806) 775-3163 Fax: n/a E-mail: snagiharaLy-) bock.us 2. Name: David McGaughey Address: PO Box 2000 Lubbock, TX 79457 Phone: (806) 775-3030 Fax: E-mail: dmcgaugheva,mylubbock.us 3. Name: Sheri Rand Address: PO Box 2000 Lubbock, TX 79457 Phone: (806) 775-3311 Fax: n/a - E-mail: srand@mylubbock.us 4. Name: Zjhon Smothermon Address: PO Box 2000 Lubbock, TX 79457 Phone: (806,) 775-3020 Fax: E-mail: zsmothermon�?a mylubbock.us E512G page 12 of 16 01/19/2012 APPENDIX F ELIGIBLE CITY AGENCIES, BOARDS OR COMMISSIONS Name: City of Lubbock, TX Contact Nasne: Mark Yearwood, CIO Address: P.O. Box 2000 Lubbock, TX 79457 Phone: Fax: E-mail: Name: Lubbock Metropolitan Planning Organization Contact Name: H. David Jones, Director Address: 916 Main Street, Suite 445 Lubbock, TX 79401 Phone: (806) 775-1676 Fax. (806) 775-1675 E5120 Page 13 of 16 01/19/2012 • esr � GENERAL LIC ESE E 07/201 AND CONDITIONS Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 ARTICLE I —DEFINITIONS Definitions. The terms used are defined as follows: a. "Authorization Code(s)" means any key, authorization number, enablement code, login credential, activation code, token, account user name and password, or other mechanism required for use of a Product. b. "Beta" means any alpha, beta, or prerelease Product. c. "Commercial Application Service Provider Use" or "Commercial ASP Use" means generating revenue by providing access to Software through a website or Internet web application that enables third parties to access and use a Licensee -developed application that uses Software, for example, by charging a subscription, service, or any other form of transaction fee or by generating more than incidental advertising revenue. d. "Content" has the meaning provided in Addendum 3. e. "Data" means any Esri or third -party digital dataset(s) including, but not limited to, geographic vector data, raster data reports, or associated tabular attributes, whether bundled with Software and Online Services or delivered independently. f. "Deployment License" means a license that allows Licensee to sublicense select Software and associated Authorization Codes to third parties. g. "Documentation" means ali user reference documentation that is delivered with the Software. h. "Online Services" means any Internet -based geospatial system, including applications and associated APIs, but excluding Data or Content, hosted by Esri or its licensors, for storing, managing, publishing, and using maps, data, and other information. i. "Ordering Document(s)" means a sales quotation, purchase order, or other document identifying the Products that Licensee orders. j. "Product(s)" means Software, Data, Online Services, and Documentation licensed under the terms of this License Agreement. k. "Sample(s)" means sample code, sample applications, add-ons, or sample extensions of Products. 1. "Service Credit(s)" means a unit of exchange that is allocated with an Online Services subscription in an amount specified in the Ordering Document. Each Service Credit entitles Licensee to consume a set amount of Online Services, the amount varying depending on the Online Services being consumed. As Online Services are consumed, Service Credits are automatically debited from Licensee's account, up to the maximum number of Service Credits available. Additional Service Credits can be purchased as described in Addendum 3 (also available at http://www.esri.com/legal). in. "Software" means all or any portion of Esri's proprietary software technology, excluding Data, accessed or downloaded from an Esri-authorized website or delivered on any media in any format including backups, updates, service packs, patches, hot fixes, or permitted merged copies. n. "Term License" means a license or access provided for use of a Product for a limited time period ("Term") or on a subscription or transaction basis. ARTICLE 2—INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP Products are licensed, not sold. Esri and its licensors own Products and all copies, 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 Products 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 Products. ARTICLE 3--GRANT OF LICENSE 3.1 Grant of License. Esri grants to Licensee a personal, nonexclusive, nontransferable license solely to use the Products as set forth in the applicable Ordering Documents (i) for which the applicable license fees have been paid; (ii) for Licensee's own internal use; (iii) in accordance with this License Agreement and the configuration ordered by Licensee or as authorized E200 Page 14 of 44 09/07/2012 by Esri; and (iv) for the applicable Tenn or, if no Term is applicable or identified, until terminated in accordance with Article 5. In addition to the Scope of Use in Article 4, Exhibit 1—Scope of Use (E300) applies to specific Products. Addendum 1, Addendum 2, Addendum 3, and Addendum 4 collectively comprise Exhibit 1—Scope of Use (E300) and are also available at http:llwww.esri.com/legali"pdfs/. a. Software. Terms of use for specific Software products are set forth in Addendum I, which is incorporated by reference. b. Data. Data terms of use are set forth in Addendum 2, which is incorporated by reference. c. Online Services. Terms of use for Online Services are set forth in Addendum 3, which is incorporated by reference. d. Limited Use Programs. Terms of use for noncommercial, nonprofit, educational, or other limited -use programs are set forth in Addendum 4, which is incorporated by reference. 3.2 Evaluation and Beta Licenses. Products acquired under an evaluation license or under a Beta program are intended for evaluation and testing purposes only and not for commercial use. Any such use is at Licensee's own risk, and the Products do not qualify for Esri maintenance. ARTICLE 4—SCOPE OF USE 4.1 Permitted Uses a. For Products delivered, Licensee may 1. Install and store Products on electronic storage device(s); 2. Make archival copies and routine computer backups; 3. Install and use a newer version of Software concurrently with the version to be replaced during a reasonable transition period not to exceed six (6) months, provided that the deployment of either version does not exceed Licensee's licensed quantity; thereafter, Licensee shall not use more Software in the aggregate than Licensee's total licensed quantity; 4. Move the Software in the licensed configuration to a replacement computer; and 5. Distribute to third parties Software and any associated Authorization Codes required for use of a Deployment License. b. Commercial Application Service Provider Use. Provided that Licensee (i) is a governmental or not -for -profit organization that operates a website or offers an Internet service on a cost recovery basis and not for profit or (ii) acquires a Commercial ASP Use subscription license, Licensee may use the Software for Commercial ASP Use. However, Licensee may not provide third parties with direct access to Esri Software so that the third parties may use the Software directly, develop their own GIS applications, or create their own solutions in conjunction with the Software. 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. Portions 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 © [Licensee will insert the actual copyright date(s) from the source materials] Esri and its licensors. All rights reserved." e. Font Components. While the software is running, Licensee may use its fonts to display and print content. Licensee may only (i) embed fonts in content as permitted by the embedding restrictions in the fonts and (ii) temporarily download them to a printer or other output device to print content. f. Consultant or Contractor Access. Subject to Section 3.1, Esri grants Licensee the right to permit Licensee's consultants or contractors to use the Products exclusively for Licensee's benefit. Licensee shall be solely responsible for compliance by consultants and contractors with this License Agreement and shall ensure that the consultant or contractor discontinues Product use upon completion of work for Licensee. Access to or use of Products by consultants or contractors not exclusively for Licensee's benefit is prohibited. E200 Page 15 of 44 09/07/2012 4.2 Uses Not Permitted. Except to the extent that applicable law prohibits or overrides these restrictions, or as provided herein, Licensee shall not a. Sell, rent, lease, sublicense, lend, assign, or time-share Products; b. Use for Commercial ASP Use or service bureau purposes; c. Use Software, Data, or Documentation for a site or service and operate the site or service for profit or generate revenue through direct or indirect methods (e.g., advertising or by charging for access to the site or service); d. Redistribute Software, Data, or Online Services to third parties, in whole or in part, including, but not limited to, extensions, components, or DLLs; or e. Redistribute Authorization Codes; f. Reverse engineer, decompile, or disassemble Products; g. Make any attempt to circumvent the technological measure(s) that controls access to or use of Products; h. Store, cache, use, upload, redistribute, or sublicense Content or otherwise use Products in violation of Esri's or a third party's rights, including intellectual property rights, privacy rights, nondiscrimination laws, or any other applicable law or government regulation; i. Remove or obscure any Esri (or its licensors') patent, copyright, trademark, proprietary rights notices, and/or legends contained in or affixed to any Product, Product output, metadata file, or online and/or hard -copy attribution page of any Data or Documentation delivered hereunder; j. Unbundle or independently use individual or component parts of Software, Online Services, or Data; k. Incorporate any portion of the Software into a product or service that competes with the Software; I. Publish the results of benchmark tests run on Beta without the prior written permission of Esri and its licensors; or in. Use, incorporate, modify, distribute, provide access to, or combine any computer code provided with the Software in a manner that would subject such code or any part of the Software to open source license terms, which includes any license terms that require computer code to be (i) disclosed in source code form to third parties, (ii) licensed to third parties for the purpose of making derivative works, or (iii) redistributable to third parties at no charge. ARTICLE 5—TERM AND TERMINATION This License Agreement is effective upon acceptance. Licensee may terminate this License Agreement or any Product license at any time upon written notice to Esri. Either party may terminate this License Agreement or any license for a material breach that is not cured within ten (10) days of written notice to the breaching party, except that termination is immediate for a material breach that is impossible to cure. Upon termination of the License Agreement, all licenses granted hereunder terminate as well. Upon termination of a license or the License Agreement, Licensee will (i) stop accessing and using affected Product(s); (ii) clear any client -side data cache derived from Online Services; and (iii) uninstall, remove, and destroy all copies of affected Product(s) in Licensee's possession or control, including any modified or merged portions thereof, 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 for a period of ninety (90) days from the date Esri issues the Authorization Code enabling use of Software and Online Services that (i) the unmodified Software and Online Services will substantially conform to the published Documentation under normal use and service and (ii) media on which Software is provided will be free from defects in materials and workmanship. 6.2 Special Disclaimer. CONTENT, DATA, SAMPLES, HOT FIXES, PATCHES, UPDATES, ONLINE SERVICES PROVIDED ON A NO -FEE BASIS, AND EVALUATION AND BETA SOFTWARE ARE DELIVERED "AS IS" WITHOUT WARRANTY OF ANY KIND. 6.3 Internet Disclaimer. THE 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) THE PARTIES HAVE NO CONTROL OVER THE INTERNET, AND (iii) NONE OF THE PARTIES SHALL BE LIABLE FOR DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE PERFORMANCE OR DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE OPERATION OF ONLINE SERVICES. E200 Page 16 of 44 09/07/2012 6.4 General Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, ESRI DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, ESRI DOES NOT WARRANT THAT PRODUCTS 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. PRODUCTS ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS THAT MAY LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL PROPERTY/ENVIRONMENTAL DAMAGE. ANY SUCH USE SHALL BE AT LICENSEE'S OWN RISK AND COST. 6.5 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 or Online Services subject to the Esri Maintenance Program, as applicable; or (iii) return of the license fees paid by Licensee for Software or Online Services that do not meet Esri's limited warranty, provided that Licensee uninstalls, removes, and destroys all copies of Software or Documentation; ceases using Online Services; 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 ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT OR USE OF PRODUCTS, 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, THE TOTAL CUMULATIVE LIABILITY OF ESRI 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 THE PRODUCTS THAT GIVE RISE TO THE CAUSE OF ACTION. 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 Products or any other product or service delivered by Esri. The parties agree that Esri has set its fees 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. THE FOREGOING WARRANTIES, LIMITATIONS, AND EXCLUSIONS MAY NOT BE VALID IN SOME JURISDICTIONS AND APPLY ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE'S JURISDICTION. LICENSEE MAY HAVE ADDITIONAL RIGHTS UNDER LAW THAT MAY NOT BE WAIVED OR DISCLAIMED. ESRI DOES NOT SEEK TO LIMIT LICENSEE'S WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW. ARTICLE 8—INFRINGEMENT INDEMNITY 8.1 Esri shall defend, indemnify, and hold Licensee harmless from and against any loss, liability, cost, or expense, including reasonable attorneys' fees, that Licensee incurs as a result of any claims, actions, or demands by a third party alleging that Licensee's licensed use of Software or Online Services infringe a US patent, copyright, or trademark, provided a. Licensee promptly notifies Esri in writing of the claim; b. Licensee provides documents describing the allegations of infringement; E200 Page 17 of 44 09J07/2012 c. Esri has sole control of the defense of any action and negotiation related to the defense or settlement of any claim; and d. Licensee reasonably cooperates in the defense of the claim at Esri's request and expense. 8.2 If Software or Online Services are found to infringe a US patent, copyright, or trademark, Esri, at its own expense, may either (i) obtain rights for Licensee to continue using the Software or Online Services or (ii) modify the allegedly infringing elements of Software or Online Services while maintaining substantially similar functionality. If neither alternative is commercially reasonable, the license shall terminate, and Licensee shall cease accessing infringing Online Services and shall uninstall and return to Esri any infringing item(s). Esri's entire liability shall then be to indemnify Licensee pursuant to Section 8.1 and (i) refund the perpetual license fees paid by Licensee for the infringing items, prorated on a five (5)-year, straight-line depreciation basis beginning from the initial date of delivery, and (ii) for term licenses and maintenance, refund the unused portion of the fees paid. 8.3 Esri shall have no obligation to defend Licensee or to pay any resultant costs, damages, or attorneys' fees for any claims or demands alleging direct or contributory infringement to the extent arising out of (i) the combination or integration of Software or Online Services with a product, process, or system not supplied by Esri or specified by Esri in its Documentation; (ii) material alteration of Software or Online Services by anyone other than Esri or its subcontractors; or (iii) use of Software or Online Services after modifications have been provided by Esri for avoiding infringement or use after a return is ordered by Esri under Section 8.2. 8.4 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 Updates. New or updated Products and subscription renewals will be licensed under the then -current Esri license terms and conditions. Updated versions of the license terms and conditions will be available on Esri's website, included with a quote, or found at hLV://www.esri.com/lepal/licensinp,/software-license.html. 9.2 Export Control Regulations. Licensee expressly acknowledges and agrees that Licensee shall not export, reexport, import, transfer, or release Products, in whole or in part, to (i) any US embargoed country; (ii) any person on the US Treasury Department's list of Specially Designated Nationals; (iii) any person or entity on the US Commerce Department's Denied Persons List, Entity List, or Unverified List; or (iv) any person or entity or into any country where such export, reexport, or import violates any US, local, or other applicable import/export control laws or regulations including, but not limited to, the terms of any import/export license or license exemption and any amendments and supplemental additions to those import/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 Licensee's 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 on the respective successors and assigns of the parties to this License Agreement. Notwithstanding, a government contractor under contract to the government to deliver Products may assign this License Agreement and Products acquired for delivery to its government customer upon written notice to Esri, provided the government customer assents to the terms of this 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. E200 Page 18 of 44 09/07/2012 9.8 Equitable Relief. Licensee agrees that any breach of this License Agreement by Licensee may cause irreparable damage and that, in the event of such breach, in addition to any and all remedies at law, Esri 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 proving injury as a condition for relief. 9.9 US Government Licensee. The Products are commercial items, developed at private expense, provided to Licensee under this License Agreement. If Licensee is a US government entity or US government contractor, Esri licenses Products to Licensee in accordance with this License Agreement under FAR Subparts 12.211/12,212 or DFARS Subpart227.7202. Esri Data and Online Services are licensed under the same subpart 227.7202 policy as commercial computer software for acquisitions made under DFAILS. The commercial license rights in this License Agreement strictly govern Licensee's use, reproduction, or disclosure of Products. Esri Software source code is unpublished, and all rights to Products are reserved by Esri and its licensors. Licensee may transfer Software to any licensed government procuring agency facility to which computer(s) on which Software is installed are transferred. If any court, arbitrator, or board holds that Licensee has greater rights to any portion of Products under applicable public procurement law, such rights shall extend only to the portions affected. 9.10 Governing Law a. Licensees in the United Stater of America, Its Territories, and Outlying Areas. This License Agreement shall be governed by and construed in accordance with the laws of the State of Texas without reference to conflict of laws principles, except that US federal law shall govern in matters of intellectual property. Except as provided in Section 9.8, the City of Lubbock Texas reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control, If Licensee is a US government agency, this License Agreement is subject to the Contract Disputes Act of 1979, as amended (41 USC 601-613), in lieu of the arbitration provisions of this clause. b. This License Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. 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 current applicable maintenance policy. 9.12 Feedback. Esri may freely use any feedback, suggestions, or requests for Product improvements that Licensee provides to Esri. 9.13 Patents. Licensee may not seek, and may not permit any other user to seek, a patent or similar right worldwide that is based on or incorporates any Esri technology or services. This express prohibition on patenting shall not apply to Licensee's software and technology except to the extent that Esri technology or services, or any portion thereof, are a part of any claim or preferred embodiment in a patent application or a similar application. 9.14 Entire Agreement. This License Agreement, including its incorporated documents, constitutes the sole and entire agreement of the parties as to the subject matter set forth herein and supersedes any previous license agreements, understandings, and arrangements between the parties relating to such subject matter. Additional or conflicting terms set forth in any purchase orders, invoices, or other standard form documents exchanged during the ordering process, other than product descriptions, quantities, pricing, and delivery instructions, are void and of no effect. Any modification(s) or amendment(s) to this License Agreement must be in writing and signed by each party. E200 Page 19 Of 44 MOM] 2 EXHIBIT 1 SCOPE OF USE (E300 10/15/2012) Esri, 380 New York St., Redlands, CA 92373-8100 USA • TEL 909-793-2853 • FAX 909-793-5953 ADDENDUM I SOFTWARE TERMS OF USE (E300-1) This Software Terms of Use Addendum ("Addendum 1 ") sets forth the terms of Licensee's use of Software and includes the Licensee's existing master license agreement, if any, or the License Agreement found at http://www.esri.com/legal/software -license (as applicable, the "License Agreement"), which is incorporated by reference. This Addendum 1 takes precedence over conflicting terms of the License Agreement. SECTION I —DEFINITIONS Software may be offered under the following license types as set forth in the applicable sales quotation, purchase order, or other document identifying the Products that Licensee orders: 1. "Concurrent Use License" means a license to 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, including the right to run passive failover instances of Concurrent Use License software in a separate operating system environment for temporary failover support. 2. "Deployment Server License" means a license that, in addition to providing Staging Server License rights, authorizes Licensee to install and use the Software or Data to provide services to multiple users on the same or other computer(s). 3. "Development Server License" means a license that authorizes Licensee to 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. "Single Use License" means a license that allows Licensee to 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. Licensee may permit the single authorized end user to install a second copy for end user's exclusive use on a second computer as long as only one (1) copy of Product is in use at any time. No other end user may use Product under the same license at the same time for any other purpose. 5. "Staging Server License" means a license that, in addition to providing Development Server License rights, enables Licensee to 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. b. "Term License" means a license or access provided for use of a Product for a limited time period ("Term") or on a subscription or transaction basis. E300 Page 20 of 44 M 15/20 0 SECTION 2-TERMS OF USE FOR SPECIFIC SOFTWARE Unless otherwise noted in the applicable Ordering Document, extensions to Software follow the same scope of use as that granted for the corresponding Software. Specific Software is subject to the terms of use set forth in the notes referenced below: Desktop ■ Address Coder (22; Addendum 2, Note 7) ■ ArcExplorer-Java and Windows Editions (20; Addendum 2, Note 1) ■ ArcGIS for Desktop (Advanced, Standard, or Basic) (26; Addendum 2, Note 1; Addendum 2, Note 6) ■ ATCGIS Explorer Desktop (20; Addendum 2, Note I) • ArcGIS for AutoCAD (20) ■ ArcLogistics - Desktop (Addendum 2, Note 1; Addendum 2, Note 2) - Using ArcGIS Online (20; 46; Addendum 2, Note 1 - Using ArcGIS for Server (20; 46; Addendum 2, Note I - Navigator (46; Addendum 2, Note 1; Addendum 2. Note 2) • ArcPad (12; 13; Addendum 2, Note 1; Addendum 2, Note 2 ■ ArcReader (20; Addendum 2, Note 1) ■ ArcView 3.x and Extensions (17) • Esri Business Analyst (Addendum 2, Note l ; Addendum 2, Note 4) • Esri Maps for Office (Addendum 2, Note 1) ■ Sourcebook•America (20; Addendum 2, Note 8) ■ ArcGIS for Windows Mobile (15; 54; Addendum 2, Note 1) Server ■ ArcGIS for Server - Workgroup (8; 9; 28, 29; 30; 32; 38; 39; Addendum 2. Note 1; Addendum 2, Note 6) - Enterprise (8; 9; 27; 31; 38; 39; Addendum 2, Note 1; Addendum 2, Note 6) - Cloud Bundle (10, Addendum 3-Common Ternis ■ ArcGIS for Server Extensions - ArcGIS for INSPIRE (8; Addendum 2, Note 1) Notes • Esri Business Analyst Server - Workgroup (8; 9; 28; 29; 30; 31; 39; Addendum 2. Note 1; Addendum 2. Note 4) - Enterprise (8; 9; 27; 31; 39; Addendum 2, Note 1; Addendum 2, Note 4) ■ Portal for ArcGIS (31; 61; 62; Addendum 2, Note I ) ■ Esri Tracking Server (3 1 ) ■ Esri Maps for IBM Cognos (53) • Esri Maps for SharePoint (Addendum 2, Note 1) Developer Tools ■ ArcGIS Runtime SDK for iOS, Windows Phone, Windows Mobile, or Android (16; Addendum 2, Note 1) ■ ArcGIS for iOS; ArcGIS for Windows Phone; ArcGIS for Android (Addendum 2, Note 1) ■ ArcGIS Engine Developer Kit and Extensions (16, 22, 26) ■ ArcGIS Engine for Windows/Linux and Extensions (15; 22; 26; Addendum 2, Note 1; Addendum 2, Note 6) ■ ArcGIS for Windows Mobile Deployments (15; 54; Addendum 2, Note I) ■ ArcGIS Runtime (18; 59; Addendum 2, Note 1) ■ ArcGIS Runtime SDK (16; 60; Addendum 2, Note 1) ■ ArcGIS Web Mapping (including ArcGIS API for JavaScript/HTML5, ArcGIS API for Flex, ArcGIS API for Microsoft Silverlight, ArcGIS API for WPF) 05; 16; 64; 66; Addendum 2, Note 1) ■ Esri Business Analyst Server Developer (Addendum 2, Note 1; Addendum 2, Note 4) ■ Esri Developer Network (EDN) Software, Online Services, and Data (24; 26; Addendum 2, Note 1; Addendum 2, Note 6) ■ Esri File Geodatabase API (47) Bundled Products ■ ArcGIS for Transportation Analytics (1; Addendum 2, Nate 2; Addendum 2, Note 11) 1. Licensee may use the Software, Data, and Online Services included in ArcGIS for Transportation Analytics solely for direct support of fleet operations. No other use of ArcGIS for Transportation Analytics or the individual components that are part of ArcGIS for Transportation Analytics is permitted. This restriction does not apply to the ArcGIS Online Organization Account included with ArcGIS for Transportation Analytics. The ArcGIS Online Organization Account can be used for any purpose subject to the terms of this License Agreement. 2-7, Reserved. 8. The administration tools for the Software may be copied and redistributed throughout Licensee's organization. E300 Page 21 of 44 10/15/2012 9. User -developed ArcGIS for Server administration tools may be copied throughout Licensee's organization, but the ArcCatalog application (found in ArcGIS for Desktop) may not be copied. 10. Licensee will provide information or other materials related to its content (including copies of any client -side applications) as reasonably requested to verify Licensee's compliance with this License Agreement. Esri may monitor the external interfaces (e.g., ports) of Licensee's content to verify Licensee's compliance with this License Agreement. Licensee will not block or interfere with such monitoring, but Licensee may use encryption technology or firewalls to help keep its content confidential. Licensee will reasonably cooperate with Esri to identify the source of any problem with the Cloud Bundle services that may reasonably be attributed to Licensee's content or any end -user materials that Licensee controls. 11. Reserved. 12. Software is licensed for navigational use only when used in conjunction with AreLogistics. 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. Reserved. 15. Licensed as a Deployment License. Deployment Licenses for Internet application(s) may be subject to payment of additional license fees. lb. Licensee may deliver applications to Licensee's sublicensee(s) provided Licensee uses a sublicense agreement that protects Esri's rights in Esri's Software, Data, Online Services, and Documentation to the same extent as the License Agreement including, but not limited to, the following terms: a. Sublicensee may not reverse engineer, decompile, or disassemble the Esri Software, Data, Online Services, or Documentation, except to the extent permitted by applicable law; copy for commercial use; or transfer or assign its rights under the license grant; b. Sublicensee may not use any Esri Software, Data, Online 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. Applications may be subject to deployment fees owed to Esri. Contact Esri or Licensee's distributor for details. 17. Licensee may use Business Objects Crystal Reports software only with the ArcView 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. Licensed as a Deployment License. The Deployment License is per application per computer. Deployment Licenses may not be used for Internet or server deployment. Deployment Licenses for desktop application(s) may be subject to payment of additional license fees. 19. Reserved. 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 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. 21. Reserved. 22. a. ArcGIS Engine for Windows/Linux licenses shall not be used for Internet and server development and deployment; b. An end user must license either AreGIS Engine for Windows/Linux Software or other AreGIS for Desktop Software (Basic, Standard, or Advanced) to obtain the right to run an ArcGIS Engine application on one (1) computer; and c. The ArcGIS Engine for Windows/Linux extensions shall not be used in combination with AreGIS for 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. Reserved. E300 Page 22 of 44 10/15/2012 24. EDN Software may be used only for the purposes of research, development, testing, and demonstration of a prototype application. EDN server Software and Data may be installed on multiple computers for use by any named EDN developer. ArcGIS Online subscriptions included with EDN Advanced may be used as permitted by the Terms of Use in Addendum 31 Online Services Addendum. 25. Reserved. 26. An ArcSDE Personal Edition geodatabase is restricted to ten (10) gigabytes of Licensee's data. 27. ArcGIS for Server Web ADF Runtime Software may not be deployed independently of Licensee's ArcGIS for Server Enterprise configuration. 28. Use is limited to ten (10) concurrent end users of applications other than ArcGIS for Server applications. This restriction includes use of ArcGIS for Desktop Software, ArcGIS Engine Software, and third -party applications that connect directly to any ArcGIS for Server geodatabase. There are no limitations on the number of connections from web applications. 29. Software can only be used with a supported version of SQL Server Express. Supported versions are listed with the system requirements for the product on the Esri website. 30. Use is restricted to a maximum of ten (10) gigabytes of Licensee's data. 31. Licensee may have redundant Esri Server Software installation(s) for failover operations, but the redundant Software can only be operational 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. Redundant Software installation for failover operations is not permitted. 33-37. Reserved. 38. The ArcGIS 3D Analyst for Server extension included with ArcGIS for Server Standard (Workgroup or Enterprise) may be used only for generating globe data cache(s) or publishing a globe document as an ArcGIS Globe Service. No other use of the ArcGIS 3D Analyst for Server extension Software is permitted with ArcGIS for Server Standard. 39. Any editing functionality included with ArcGIS for Server is not permitted for use with ArcGIS for Server Basic (Workgroup or Enterprise). 40-45. Reserved. 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 develop and distribute software or web applications that use Esri File Geodatabase API to Licensee's end users. 48-52. Reserved. 53. This authorizes installation and use of a sufficient quantity of instances of ArcGIS for Server Enterprise Standard solely for the purposes of integrated intercommunication between Esri ArcGIS for Server map services and IBM Cognos data packages. No other use of Esri ArcGIS for Server Enterprise Standard is permitted. 54. ArcGIS for Windows Mobile Deployments are licensed for use with ArcGIS for Server Advanced (Enterprise or Workgroup), ArcGIS for Desktop (Advanced, Standard, Basic), and ArcGIS Engine applications. 55-58. Reserved. 59. Licensee may develop an unlimited number of applications on a single computer and deliver the applications to end users up to the number of Deployment Licenses that have been purchased. 60. a. ArcGIS Runtime SDK licenses shall not be used for Internet or server development; b. An end user must purchase a software application that includes an ArcGIS Runtime license to obtain the right to run an ArcGIS Runtime application on one (1) computer; and c. Customers building applications for their own internal use must purchase ArcGIS Runtime licenses for every application Deployed that includes ArcGIS Runtime. A single user may have multiple ArcGIS Runtime licensed applications installed on one (1) computer, but each application is an independent Deployment of ArcGIS Runtime. 61. Oracle is a third -party beneficiary of Esri's rights under the License Agreement with respect to the Software but is not a party hereto and assumes no obligations hereunder. 62. Esri and its licensors reserve the right to conduct an audit of Licensee's use of the Software. Licensee will provide reasonable assistance and access to information regarding Licensee's use of the Software. Audit results may be reported to Esri's licensors. Fees for overdeployment or excess usage are payable within thirty (30) days of the invoice date. 63. Reserved. 64. For web applications, Licensee may not use this Product independently of other Esri Product(s). 65. Reserved. E300 Page 23 of 44 10/15/2012 66. For desktop applications or SharePoint, each license is per organization. For the purposes of this license, organization is equivalent to a principal registered unique domain identifier. Domain is the Internet domain name registered with a domain name registrar. For instance, in example.com, example.com is the registered unique domain identifier. Similarly, in example.com.xx, where xx is a registered country code, example.com.xx is the registered unique domain identifier. Desktop applications can be used by any employee of the organization with the principal registered unique domain identifier. There is no limit to the number of applications that can be built and deployed within an organization. E300 Page 24 of 44 10/15/2012 ADDENDUM 2 DATA TERMS OF USE (E300-2) This Data Terms of Use Addendum ("Addendum 2") sets forth the terms of Licensee's use of Data and includes Licensee's existing master license agreement, if any, or the License Agreement found at http://www.esri.comlleaaUsoftware-license (as applicable, the "License Agreement"), which is incorporated by reference. This Addendum 2 takes precedence over conflicting terms of the License Agreement. Esri reserves the right to modify the Data terms of use referenced below at any time. Licensee may cancel a subscription upon written notice to Esri or discontinue use of the Data, as applicable. If Licensee continues to use the Data, Licensee will be deemed to have accepted the modification. Data terms of use are set forth in the notes referenced below: ■ ArcGIS Online Data (1) ■ StreetMap Premium for ArcGIS (2) ■ StreetMap Premium for Windows Mobile (2) ■ StreetMap Premium for ArcPad (2) ■ StreetMap Premium for ArcGIS for Transportation Analytics (2; Addendum 1, Note 1) ■ NAVTEQ Traffic Data (11; Addendum 1, Note 1) ■ ArcLogistics Data (2) Notes ■ Data Appliance for ArcGIS (3) ■ Business Analyst/Location Analytics Data (4, 10) • Demographic, Consumer, and Business Data ("Esri Data") (5, 10) ■ Data and Maps for ArcGIS (6) ■ Address Coder Data (7, 10) • Sourcebook•America Data (8, 10) ■ MapStudio Data (9) 1. ArcGIS Online Data: Software and Online Services that reference this note enable access to ArcGIS Online Data. AreGIS Online Data is provided for use solely in conjunction with Licensee's authorized use of Esri Software and Online Services. Licensee may use Data accessed through ArcGIS Online as permitted under the terms of the URLs referenced below: a. NAVTEQ data is subject to the terms of use at http://www.esri.coi.n/--/media/Files/Pdfs/legal/pdfs/i9791 -navteq _use data.pdf. b. Tele Atlas/TomTom data is subject to the terms of use at http:/;'www.esri.com/--/media/Files/Pdfs/leaal/pdfs /i9792-teleatlas use data.pdf. c. Data from i-cubed is subject to the terms of use at http:/i`www.esri.comi-/media/Files/Pdfs/legal/pdfs,/i9946 -icubed.pdf d. Microsoft Bing Maps data is subject to the terms of use at hit p:JJwww.esri.comh/media/Files/Pdfs/legal/pdfs /e-802-bing7mapsvcs. pdf. e. BODC bathymetry data is subject to the terns of use found at https://www.bodc.ac.uk/data/online delivery / ebco/terms of use/. StreetMap Premium for ArcGIS: StreetMap Premium for ArcGIS for Windows Mobile; StreetMap Premium for ArcPad; StreetMap Premium for ArcGIS for Transportation Analytics; ArcLogistics Data: StreetMap Premium Data may be used for mapping, geocoding, and single vehicle routing purposes but is not licensed for dynamic routing. For instance, StrectMap Premium Data may not be used to alert a user about upcoming maneuvers (such as warning of an upcoming turn) or to calculate an alternate route if a turn is missed, StreetMap Premium Data may not be used to perform synchronized routing of multiple vehicles. Data acquired for use with AreGIS for Desktop, ArcGIS for Server, ArcPad, ArcGIS for Transportation Analytics, or ArcLogistics Software may only be used with the Product for which the Data was acquired, and may not be used with any other Product. StreetMap for Windows Mobile Data is licensed for use solely on mobile devices or in conjunction with ArcGIS for Mobile applications. Data may include data from either of the following sources: a. NAVTEQ data is subject to the terms of use at http:/Iwww.esri,conV-/media,'Files/Pdfs/legal/pdfs/j9791 -navtea use data.pdf. NAVTEQ data, when licensed for use in StreetMap Premium for ArcGIS for Transportation Analytics, permits tracking, multivehicle routing, and route optimization. b. Tele Atlas/TomTom data is subject to the terms of use at http://www.csri.coin/--/media/Files/Pdfs./legal/edfs Jj9792-teleatlas use data.pdf. E300 Page 25 of 44 10/15/2012 3. Data.4ppliancefor ArcGIS: Data provided with Data Appliance is subject to the following additional terms of use: a. Licensee may only use Data for North America with the North America collection of the Data Appliance for AreGIS. 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 (I) -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. b. NAVTEQ data is subject to the terms of use at http:,;'ww,�v.esri.camh-/media/Files/Pdfs/leizal 12dfs/j9791 -navteg use data.pdf. c. Tele Atlas/TomTom data is subject to the terms of use at littp://www-esri.com/—`/media/Files/Pdfs/lepal/pdfs /j9792-teleatlas use data.pdf. d. Data from i-cubed is subject to the terms of use at ht!p://www.esri.coi-n/—/Inedia/Files,,Pdfs/legal/Vdfs/i9946 -icubed.ndf. e. BODC bathymetry data is subject to the terms of use found at https://w«,w.bodc.ac.uk:/data/online_ delivery /gebco/terms of use:'. 4. Business Analyst Data; Location Analytics Data: Business Analyst Data is provided with Esri's Business Analyst (Server, Desktop) or accessed through Business Analyst Online and Community Analyst. Location Analytics Data is accessed through Business Analyst Online API, Community Analyst API, and Location Analytics API. The Data is subject to the following additional terms of use: a. The Data is provided for Licensee's internal business use solely in connection with Licensee's authorized use of Software. Business Analyst Data is restricted for use only in conjunction with the respective Business Analyst extension. Location Analytics Data is restricted for use only in conjunction with Business Analyst Online API, Community Analyst API, and Location Analytics API. If Licensee orders a license for Esri Business Analyst or Business Analyst (Canadian Edition), or for Business Analyst Online API, Community Analyst API, and Location Analytics API, with a subset of the national dataset (i.e., Region, State, Local), Licensee may use only the licensed subset, not any other portion of the national dataset. b. Licensee's use of Canadian Edition Data with Business Analyst (Server, Desktop), Business Analyst Online API, Community Analyst API, or Location Analytics API is subject to the Use of Data Restrictions specific to Esri Business Analyst (Canadian Edition) Data, c. Infogroup data is subject to the following terms of use: "Users" means end users of Esri Software. Any use of the Infogroup database not expressly authorized in this License Agreement is strictly prohibited. Without limiting the generality of the foregoing, Users are expressly prohibited from (i) cobranding or otherwise providing the product or service on behalf of any third party; (ii) sublicensing or reselling the Infogroup database; (iii) using or allowing third parties to use the Infogroup database for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from any mailing list, geographic or trade directories, business directories, classified directories, classified advertising, or other compilation of information that is sold, rented, published, furnished, or in any manner provided to a third party; (iv) using the Infogroup database in any service or product not specifically authorized in this License Agreement or offering it through any third party; (v) disassembling, decompiling, reverse engineering, modifying, or otherwise altering the Infogroup database or any part thereof without Infogroup's prior written consent, such consent to be granted or withheld at Infogroup's sole discretion; or (vi) using the Infogroup database for any direct marketing purposes. d. NAVTEQ data is subject to the terms of use at http:/hvww,esri.com/--/medWFiles/Pdfs/legal/pdfs/j9791 -navteq use data.pdf. e. Tele Atlas/TomTom data is subject to the terms of use at http://www.esri.com/—/media/Files/Pdfs/legal//pdfs /i9792-teleatlas use data.pdf. 5. Demographic, Consumer, and Business Data CEsri Data"): This Data category includes demographic, consumer, business, and Tapestry Segmentation datasets. Subject to the terms of the License Agreement and this Addendum 2, Licensee may use the Esri Data for any business purpose. E300 Page 26 of 44 10/M2012 6. Data and Maps for ArcGIS: The Data is available to licensed users of ArcGIS for Desktop, ArcGIS for Server, and ArcGIS Online. Data and Maps for ArcGIS is provided for use solely in conjunction with authorized use of ArcGIS for Desktop, ArcGIS for Server, and ArcGIS Online. a. Licensee may redistribute the Data as described in the Redistribution Rights Matrix available at http://www.esri.coiyi/legal./redistribution-rihts, in the Help system, or in supporting metadata files, subject to the specific attribution descriptions and requirements for the dataset accessed. b. StreetMap Data 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 to calculate an alternate route if a turn is missed. 7. Address Coder Data: This Data is included with Address Coder and is provided for Licensee's internal business use solely in connection with Licensee's authorized use of Address Coder. 8. Sourcehook•America Data: This Data is included with Sourcebook•America and provided for Licensee's internal business use solely in connection with Licensee's authorized use of Sourcebook•America. 9. MapStudio Data: Use of this Data is subject to the following terms and conditions: a. NAVTEQ data is subject to the terms of use at http://www.esri.coin/-/media/Files/Pdfs/legal/pdfs/j9791 -navteq_use data.pdf. b. Tele Atlas/TomTom data is subject to the terms of use at llttp://www.esri.com/-Imedia/Files/Pdfs/legal/ d�fs /0792-teleatlas use data.pdf. c. Data from i-cubed is subject to the terms of use at littp:/iwww.esri.com/-/media/Files/Pdfs/legal/pdfs/i9946 -icubed.pdf, d. Infogroup Data is subject to the following terms of use: "Users" means end users of Esri Software. Any use of the Infogroup database not expressly authorized in this License Agreement is strictly prohibited. Without limiting the generality of the foregoing, Users are expressly prohibited from (i) cobranding or otherwise providing the product or service on behalf of any third party; (ii) sublicensing or reselling the Infogroup database; (iii) using or allowing third parties to use the Infogroup database for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from any mailing list, geographic or trade directories, business directories, classified directories, classified advertising, or other compilation of information that is sold, rented, published, furnished, or in any manner provided to a third party; (iv) using the Infogroup database in any service or product not specifically authorized in this License Agreement or offering it through any third party; (v) disassembling, decompiling, reverse engineering, modifying, or otherwise altering the Infogroup database or any part thereof without Infogroup's prior written consent, such consent to be granted or withheld at Infogroup's sole discretion; or (vi) using the Infogroup database for any direct marketing purposes. 10. Licensee may include Data in hard -copy or read-only format ("Outputs") in presentation packages, marketing studies, or other reports or documents prepared for third parties. Licensee shall not resell or otherwise externally distribute Outputs in stand-alone form. 11. ArcGISfor Transportation Analyties—NAVTEQ traffic data option: This online data service is available as an option for use exclusively with ArcGIS for Transportation Analytics. Use of this data is subject to the following terms and conditions: a. NAVTEQ traffic data is subject to the terms of use at http://www.esri.com,/--/media/Files/Pdfs/legal/i)dfs/j9791 -navteq use data.pdf. b. No automatic routing or rerouting based on traffic conditions is permitted without the Navigation add -on. c. NAVTEQ traffic data may not be archived and may be delivered only for end users' personal, near -term use, not to exceed one (1) twenty-four (24)-hour period. d. NAVTEQ traffic data may not be used to display or broadcast in any FM/AM/HD radio broadcast or television broadcast or through any RDS delivery method. e. NAVTEQ traffic data may not be used with or incorporated into any traffic system that provides voice traffic reports to inbound callers. f. NAVTEQ traffic data may not be used to develop or commercially make available a text -to -voice e-mail alert or message or voice mail application using any portion of NAVTEQ traffic data. E300 Page 27 of 44 10/15/2012 ADDENDUM 3 ONLINE SERVICES ADDENDUM (E300-3) This Online Services Addendum ("Addendum 3") sets forth the terms of Licensee's use of Online Services and includes the Licensee's existing master license agreement, if any, or the License Agreement found at httu://www.esri.com/leual/software -license (as applicable, the "License Agreement"), which is incorporated by reference. This Addendum 3 takes precedence over conflicting terms of the License Agreement. Esri reserves the right to update the terms from time to time. Section I of this Addendum 3 contains terms applicable to all Online Services; Section 2 contains common terms applicable to specific Online Services. SECTION 1—COMMON TERMS OF USE OF ONLINE SERVICES ARTICLE I —DEFINITIONS In addition to the definitions provided in the License Agreement, the following definitions apply to this Addendum 3: a. "API" means application programming interface. b. "ArcGIS Website" means http://www.arcg's.com and any related or successor websites. c. "Content" means Data, images, photographs, animations, video, audio, text, maps, databases, data models, spreadsheets, user interfaces, software applications, and Developer Tools. d. "Developer Tools" means software development kits (SDKs), APIs, software libraries, code samples, and other resources. e. "Named Users" means Licensee's employees; agents; consultants; contractors; or, for education accounts, registered students whom Licensee authorizes to access Online Services for Licensee's exclusive benefit through Licensee's ArcGIS Online account, to which they are explicitly linked through unique, individual user names and passwords. f. "Online Content" means Content hosted or provided by Esri as part of Online Services, including any Map Services, Task Services, Image Services, and Developer Tools and excluding Content provided by third parties that Licensee accesses through Online Services. g. "Service Components" means each of the following: Online Services, Online Content, ArcGIS Website, Developer Tools, Documentation, or related materials. h. "Licensee's Content" means any Content that Licensee or Licensee's Named Users submit to Esri in connection with Licensee's use of the Online Services, any results derived from the use of Licensee's Content with Online Services, and any applications Licensee builds with Developer Tools and deploy with Online Services. Licensee's Content excludes any feedback, suggestions, or requests for Product improvements that Licensee provides to Esri. i. "Value -Added Application" means an application using the Developer Tools and Online Services and that includes functions or features not inherent in the Online Services. j. "Web Services" as used under Licensee's existing signed license agreement, if any, means Online Services and any Content delivered by such Online Services. ARTICLE 2—USE OF ONLINE SERVICES 2.1 License to Online Services. Esri grants Licensee a personal, nonexclusive, nontransferable, worldwide license to access and use Online Services as set forth in the applicable Ordering Documents (i) for which the applicable license fees have been paid, (ii) for Licensee's own internal use by Licensee and Licensee's Named Users, and (iii) in accordance with this License Agreement and the licensed configuration on file as authorized by Esri. 2.2 Provision of Subscription Online Services. For subscription Online Services, Esri will a. Provide Online Services to Licensee in accordance with the Documentation; b. Provide customer support in accordance with Esri's standard customer support policies and any additional support Licensee may purchase; and c. Use commercially reasonable efforts to ensure that Online Services will not transmit to Licensee any Malicious Code, provided Esri is not responsible for Malicious Code that was introduced to Online Services through Licensee's account or through third -party Content. E300 Page 28 of 44 10/15/2012 2.3 Licensee's Responsibilities. Licensee or Licensee's Named Users are the only persons authorized to access Online Services through Licensee's accounts. Authorization Codes may not be shared among multiple individuals but may be reassigned for absences of one (1) month or longer. Licensee and Licensee's Named Users are responsible for maintaining the confidentiality of Authorization Codes and for ensuring that unauthorized third parties do not access Licensee's account. Licensee will immediately notify Esri if Licensee becomes aware of any unauthorized use of Licensee's account or any other breach of security. 2.4 Prohibited Uses of the Online Services. In addition to the prohibited uses under the License Agreement, Licensee shall not (i) attempt to gain unauthorized access to the Online Services or assist others to do so; (ii) use Online Services for spamming, to transmit junk e-mail or offensive or defamatory material, or for stalking or making threats of physical harm; (iii) use Online Services to store or transmit software viruses, worms, time bombs, Trojan horses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment ("Malicious Code"); (iv) mirror, reformat, or display Online Services in an attempt to mirror and/or make commercial use of Online Services except to the degree that Online Services directly enable such functionality; (v) share the client -side data cache derived from Online Services with other licensed end users or third parties; (vi) distribute the client -side data cache, routes, or geocodes derived from Online Services to third parties; (vii) manually or systematically harvest information and data contained within Online Services; (viii) use ArcGIS Online Map Services, Geocoding Services, or Routing Services in connection with any products, systems, or applications installed or otherwise connected to or in communication with vehicles capable of vehicle navigation, positioning, dispatch, real-time route guidance, fleet management, or similar applications; or (ix) incorporate any portion of Online Services into a commercial product or service unless it adds material functionality to the Online Services. 2.5 Evaluations. Esri may provide licenses to use certain Services for Licensee's internal evaluation purposes. Such licenses continue until the stated evaluation period expires or until Licensee purchases a subscription, whichever occurs first. IF LICENSEE DOES NOT CONVERT LICENSEE'S EVALUATION LICENSE TO A SUBSCRIPTION PRIOR TO EXPIRATION OF THE EVALUATION TERM, ANY CONTENT AND CUSTOMIZATIONS THAT LICENSEE UPLOADED OR MADE DURING THE EVALUATION TERM WILL BE PERMANENTLY LOST. IF LICENSEE DOES NOT WISH TO PURCHASE A SUBSCRIPTION, LICENSEE MUST EXPORT SUCH CONTENT BEFORE THE END OF LICENSEE'S EVALUATION PERIOD. 2.6 Modifications of Online Services. Esri reserves the right to alter, modify, deprecate, or discontinue Online Services and related APIs at any time. If reasonable under the circumstances, Esri will provide prior notice of any material alterations. Esri will attempt to support any deprecated APIs for up to six (6) months, unless there are legal, financial, or technological reasons not to support them. 2.7 Attributions. Licensee is not permitted to remove any Esri or its licensors' logos or other attribution associated with any use of ArcGIS Online Services. ARTICLE 3—TERM AND TERMINATION The following supplements Article 5—Term and Termination of the License Agreement: 3.1 Term of Subscriptions. The term of any subscription will be provided in the Ordering Document under which it is purchased or in the Online Services description referenced therein. 3.2 Service Interruption. Licensee's access (including access on behalf of Licensee's customers) to and use of Online Services may be suspended, without prior notice, for any unanticipated or unscheduled downtime or unavailability of all or any portion of Online Services, including system failure or other events beyond the reasonable control of Esri or its affiliates. 3.3 Service Suspension. Esri and its affiliates shall be entitled, without any liability to Licensee, to suspend access to any portion or all of Online Services at any time on a service -wide basis (a) if Licensee breaches this License Agreement or exceeds Licensee's usage limits and fails to purchase additional Service Credits sufficient to support Licensee's continued use of Online Services as described in Article 5 of this Addendum; (b) if there is reason to believe that Licensee's use of Online Services will adversely affect the integrity, functionality, or usability of the Online Services or that Esri and its licensors may incur liability by not suspending Licensee's account; (c) for scheduled downtime to conduct maintenance or make modifications to Online Services; (d) in the event of a threat or attack on Online Services (including a denial -of -service E300 Page 29 of 44 10/15/2012 attack) or other event that may create a risk to the applicable part of Online Services; or (e) in the event that Esri or its affiliates determine that Online Services (or portions thereof) are prohibited by law or otherwise that it is necessary or prudent to do so for legal or regulatory reasons. If warranted under these circumstances, Licensee will be notified of any Service Suspension beforehand and allowed reasonable opportunity to take remedial action. 3.4 Esri is not responsible for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee or any Licensee customer may incur as a result of any Service Interruption or Service Suspension. ARTICLE 4—LICENSEE'S CONTENT, FEEDBACK 4.1 Licensee's Content. Licensee is solely responsible for the development, operation, and maintenance of Licensee's Content and for all materials that appear on or in any of Licensee's Content. Licensee retains all right, title, and interest in Licensee's Content. Licensee hereby grants Esri and its licensors a nonexclusive, nontransferable, worldwide right to host, run, and reproduce Licensee's Content solely for the purpose of enabling Licensee's use of Online Services. Without Licensee's permission, Esri will not access, use, or disclose Licensee's Content except as reasonably necessary to support Licensee's use of Online Services, respond to Licensee's requests for customer support, or troubleshoot Licensee's account or for any other purpose authorized by Licensee in writing. If Licensee accesses Online Services with an application provided by a third party, Esri may disclose Licensee's Content to such third party as necessary to enable interoperation between the application and Online Services. Esri may disclose Licensee's Content if required to do so by law or pursuant to the order of a court or other government body, in which case Esri will reasonably attempt to limit the scope of disclosure. It is Licensee's sole responsibility to ensure that Licensee's Content is suitable for use with Online Services and for maintaining regular offline backups using the Online Services export and download capabilities. 4.2 Removal of Licensee's Content. Licensee will provide information and/or other materials related to Licensee content as reasonably requested by Esri to verify Licensee's compliance with this License Agreement. Esri may remove or delete any portions of Licensee's Content if there is reason to believe that uploading it to, or using it with, Online Services violates this License Agreement. If reasonable under these circumstances, Esri will notify Licensee before Licensee's Content is removed. Esri will respond to any Digital Millennium Copyright Act take -down notices in accordance with Esri's Copyright Policy, available at http.//www.esri.eom/legaI/dmcaRolicY. 4.3 Sharing Licensee's Content. Online Services and ArcGIS Website include publishing capabilities that allow Licensee to make Licensee's Content available to third parties ("Sharing Tools"). Licensee hereby grants to any third parties with whom Licensee elects to share Licensee's Content using such Sharing Tools the right and license to use, store, cache, copy, reproduce, (re)distribute, and (re)transmit Licensee's Content subject to any terms of use and access restrictions that Licensee provides with Licensee's Content. ESRI IS NOT RESPONSIBLE FOR ANY LOSS, DELETION, MODIFICATION, OR DISCLOSURE OF LICENSEE'S CONTENT RESULTING FROM LICENSEE'S NAMED USERS' MISUSE OF SUCH SHARING TOOLS OR ANY OTHER SERVICE COMPONENTS. LICENSEE'S USE OF SUCH SHARING TOOLS IS AT LICENSEE'S SOLE RISK. 4.4 Retrieving Licensee's Content upon Termination. Upon termination of this License Agreement or any evaluation or subscription, Esri will make Licensee's Content available to Licensee for download for a period of thirty (30) days unless Licensee requests a shorter window of availability or Esri is legally prohibited from doing so. Thereafter, Licensee's right to access or use Licensee's Content with Online Services will end, and Esri will have no further obligations to store or return Licensee's Content. ARTICLE 5—LIMITS ON USE OF ONLINE SERVICES; SERVICE CREDITS Esri may establish limits on the resources available to Licensee with Online Services. These limits may be controlled through Service Credits. Service Credits are used to measure the consumption of ArcGIS Online services made available through Licensee's account. The maximum Service Credits provided with Licensee's ArcGIS Online account will be addressed in the applicable Ordering Document. Esri will notify Licensee's account administrator when Licensee's Service consumption reaches approximately seventy-five percent (75%) of the Service Credits allocated to Licensee through Licensee's subscription. The overage limits for a particular Service and options to address overages will be provided in the Service description and specified in the Ordering Document. Esri reserves the right to suspend Licensee's account until Licensee pays all outstanding overage fees in accordance with this License Agreement. E300 Page 30 of 44 10/15/2012 ARTICLE "NLINE CONTENT; THIRD -PARTY CONTENT AND WEBSITES 6.1 Online Content. ArcGIS Online Data is included as a component of Online Services and is licensed under the terms of the License Agreement. 6.2 Third -Party Content and Websites. Online Services and ArcGIS Website may reference or link to third -party websites or enable Licensee to access, view, use, and download third -party Content. This Agreement does not address Licensee's use of third -party Content, and Licensee may be required to agree to different or additional terms in order to use third -party Content. Esri does not control these websites and is not responsible for their operation, content, or availability; Licensee's use of any third -party websites and third -party Content is as is, without warranty, and at Licensee's sole risk. The presence of any links or references in Online Services to third -party websites and resources does not imply an endorsement, affiliation, or sponsorship of any kind. ARTICLE 7—LICENSEE'S WARRANTIES Licensee warrants that Licensee's Content or use of Online Services with a product, process, or system not supplied by Esri or specified by Esri in its Documentation will not (i) infringe or misappropriate any third -party intellectual property rights or proprietary rights, (ii) violate any third parry's privacy rights or any applicable law, or (iii) contain or transmit to a third party any Malicious Code. Except as prohibited by applicable law, Licensee agrees to defend, indemnify, and hold harmless Esri from and against any claim, action, liability, or demand arising out of a breach of the foregoing warranties. E300 Page 31 of 44 10/15/2012 SECTION 2—TERMS OF USE FOR SPECIFIC ONLINE SERVICES Specific Online Services are subject to the terms of use set forth in the notes referenced below: ■ ArcGIS Online (1; 2; 3; Addendum 2, Note 1; Addendum 2, Note 6) ■ Business Analyst Online (4; Addendum 2, Note 1; Addendum 2, Note 4) ■ Business Analyst Online Mobile (4; Addendum 2, Note 1; Addendum 2, Note 4) ■ Esri Business Analyst Online API for Adobe Flex, Microsoft Silverlight, SOAP, and REST (6; Addendum 2, Note 1; Addendum 2, Note 4) Notes 1. In addition to the common terms of use of Online Services: ■ Community Analyst (4; Addendum 2, Note 1; Addendum 2. Note 4) ■ Esri Community Analyst API for Adobe Flex, Microsoft Silverlight, SOAP, and REST (6; Addendum 2, Note 1; Addendum 2, Note 4) ■ Esri Location Analytics API for Adobe Flex, Microsoft Silverlight, SOAP, and REST (6; Addendum 2, Note 1; Addendum 2, Note 4) ■ Redistricting Online (3; Addendum 2. Note 1) ■ MapStudio (5; Addendum 2, Note 9) a. Licensee may use Licensee's ArcGIS Online account to build a Value -Added Application(s). b. Licensee may provide access to Licensee's Value -Added Application(s) to third parties, subject to the following terms: i. Licensee may allow anonymous user access to Licensee's Value -Added Application(s). ii, Licensee shall not add third parties as Named Users to Licensee's ArcGIS Online account for the purpose of allowing third parties to access Licensee's Value -Added Application(s). This restriction does not apply to third parties included within the definition of Named Users. iii. Licensee shall not provide a third party with access to ArcGIS Online Services enabled through Licensee's ArcGIS Online account other than through Licensee's Value -Added Application(s). This restriction does not apply to third parties included within the definition of Named Users. iv. Licensee is responsible for any fees accrued through the use of Licensee's ArcGIS Online account by third parties accessing Licensee's Value -Added Application(s). This includes Service Credits required to support third -party Online Services usage and any additional subscription fees for Online Services as required. v. Licensee is solely responsible for providing technical support for Licensee's Value -Added Application(s). vi. Licensee will restrict third -party use of Online Services as required by the terms of this Agreement. c. For ArcGIS Online ELA and Organization Plan accounts: Licensee is also permitted to i. Charge an additional fee to third parties to access Licensee's Value -Added Application(s), subject to the terms of this License Agreement; or ii. Transfer Licensee's Value -Added Application(s) to a third parry's ArcGIS Online account, subject to the following: (1) Licensee may charge third parties a fee for Licensee's Value -Added Application(s). (2) Licensee is not obligated to provide technical support for the third party's general use of its ArcGIS Online account not related to Licensee's Value -Added Application(s). (3) Licensee is not responsible for any fees accrued through the third parry's use of Licensee's Value - Added Application(s) that have been transferred to or implemented on the third parry's ArcGIS Online account. d, For Personal Plans, Education and Not -for -Profit use of ArcGIS Online accounts: Licensee is not permitted to charge an additional fee to third parties to access Licensee's Value -Added Application(s) or generate more than incidental advertising revenue as a consequence of the deployment or use of the Value -Added Application(s). Charging a fee to access Licensee's Value -Added Application(s) or generating more than incidental advertising revenue requires an ArcGIS Online ELA or Organization Plan account. 2. Licensee is not permitted to be the licensee of an ArcGIS Online account for or on behalf of a third party, E300 Page 32 of 44 10/15/2012 3. Terms of Use for ArcGIS Online Services: The following ArcGIS Online Services are not subject to AreGIS Online fee - based Service Credit consumption usage. There is no fee (unless otherwise noted) to use these services up to the predefined maximum usage limits shown below. Use of these services beyond the predefined usage limits requires an additional fee. These services may be used only in conjunction with ArcGIS Software or an ArcGIS Online account. a. Map Services, Imagery Services, and Geometry Services: Licensee may put these services to any use consistent with these terms of use, subject to an aggregate limit of fifty million (50,000,000) transactions during any twelve (12)-month period. "Transaction" is defined in the Documentation at the AreGIS Online Content resource center at http://]inks,esri.com/a olg /transactiondef. b. Standard Task Services (available at hqp:/Itasks.arcgisonline.com): Licensee may put these services to any use consistent with these terms of use, subject to the following: ■ Standard Geocoding Services: Licensee may use these services for search capabilities only, and results may not be stored for later use. Whenever results are stored for later use, a subscription is required. • Standard Routing Services: Licensee is subject to a limit of five thousand (5,000) routing requests (as defined in the Documentation) during any twelve (12)-month period. c. Subscription Task Services (available at http:'nreniiunitasks.arcgisonline.cont}: Upon Licensee's payment to Esri of the applicable fee(s), Licensee may put these services to any use consistent with these terms of use. Licensee may store results for later use. d. Sample Services: Licensee may use these services for internal evaluation and development purposes only. All licenses for ArcGIS Online Services are subject to these terms of use and any additional restrictions or requirements identified in the Documentation. The following ArcGIS Online Service is subject to fee -based ArcGIS Online Service Credit consumption usage: a. ArcG1S Online World Geocoding Service (available at http: ,'Qeoeode.arcgis.coinl: Licensee may use this service for search capabilities at no cost, but results may not be stored for later use. Upon Licensee's payment for an ArcGIS Online subscription or Service Credits, Licensee may batch geocode and store results for later use. 4. Licensee may not display or post any combination of more than one hundred (100) Esri Business Analyst Online or Community Analyst Reports and maps on Licensee's external websites. 5. Licensee may create, publicly display, and distribute maps in hard copy and static electronic format for news -reporting purposes. 6. Licensee may develop software or web applications that use Business Analyst Online API, Community Analyst API, or Location Analytics API to access, query, create, display, and redistribute Reports and resultant static, electronic maps to end user(s) of Licensee's software or web applications. If Licensee has an anonymous user subscription, Licensee may provide access to Licensee's Value -Added Application(s) to anonymous end users, limited to the number of Reports Licensee has paid for. End user(s) of Licensee's software or web applications may use Reports and maps for internal purposes only and not for further redistribution. "Report(s)" means any formatted output created by the Business Analyst Online APT, Community Analyst API, or Location Analytics API Products, which includes PDF, CSV, Excel, HTML, and XML formats. Licensee shall not redistribute any Data in vector formats. Licensee and Licensee's end users are prohibited from using Reports or other output generated by Business Analyst Online API, Community Analyst API, or Location Analytics API as a substitute for Business Analyst Online API, Community Analyst API, or Location Analytics API, including, but not limited to, (i) combining and including such output in one or more files or databases and (ii) making such output available through a multiuser computer application. For clarity, end users may save Reports locally for their own internal use. For publicly facing applications developed with Business Analyst Online API (Canadian Edition), Reports and Data may be produced or exported in static formats only (e.g., JPEG, PDF); Licensee must ensure that Licensee's application does not allow Canadian Edition Reports to be exported as CSV, XML, HTML, or XLS files or in any other format that readily enables extraction or manipulation of the file's contents. Licensee is solely responsible for providing technical support for Licensee's Value -Added Application(s). E300 Page 33 of 44 10/15/2012 ADDENDUM 4 LIMITED USE PROGRAMS (E300-4) This Limited Use Programs Addendum ("Addendum 4") applies to any Licensee that has been qualified by Esri or its authorized distributor to participate in any of the programs described herein. This Addendum 4 includes the Licensee's existing master license agreement, if any, or the License Agreement found at http:l/www.esri.com/legal/software-license (as applicable, the "License Agreement"), which is incorporated by reference. This Addendum 4 takes precedence over conflicting terms of the License Agreement. Esri reserves the right to update the terms from time to time. ■ Educational Programs (1) Home Use Program (3) ■ Grant Programs (2) 1 ■ Other Esri Limited Use Programs (4) Notes 1. Educational Programs: Licensee agrees to use Products solely for educational purposes during the educational use Term. Licensee shall not use Products for any administrative use unless Licensee has acquired an administrative use Term License. Licensee shall not use Products for commercial or for -profit purposes. 2. Grant Programs: Licensee may use Products only for Noncommercial purposes as specified in the Esri grant document. Licensee shall not use Products for commercial or for -profit purposes. 3. ArcGISfor Home Use Program: a. All ArcGIS for Home Use Program Products are provided as Term Licenses and are identified on Esri's Home Use Program website found at hqp://www.esri.com/arcgis-for-home/ or Licensee's authorized distributor's website. b. Esri grants to Licensee a personal, nonexclusive, nontransferable, Single Use License solely to use the Products provided under the ArcGIS for Home Use Program as set forth in the applicable Ordering Documents (i) for which the applicable license fees have been paid, (ii) for Licensee's own Noncommercial internal use, (iii) in accordance with this License Agreement and the configuration ordered by Licensee or as authorized by Esri or its authorized distributor, and (iv) for a period of twelve (12) months unless terminated earlier in accordance with the License Agreement. "Noncommercial" means use in a personal or individual capacity that (i) is not compensated in any fashion; (ii) is not intended to produce any works for commercial use or compensation; (iii) is not intended to provide a commercial service; and (iv) is neither conducted nor funded by any person or entity engaged in the commercial use, application, or exploitation of works similar to the licensed Products. c. Installation Support. Installation Support for a period of ninety (90) days is included with ArcGIS for Home Use. As discussed further on the Esri or authorized distributor's website, Esri provides technical support in response to specific inquiries. Installation Support will apply only to unmodified Software. Software is provided only for standard hardware platforms and operating systems supported by Esri as described in the Software Documentation. Esri is not responsible for making or arranging for updates to interfaces for nonstandard devices or custom applications. Esri Installation Support will be provided in compliance with the Esri ArcGIS for Home Use Installation Support document on the Esri website at Itttp:/.!w•ww.esri.cony'-/media!Files/Pdfs,'lel,,al pdfs/home-use-installation -support.pdf. Esri supports users solely with the installation of Esri Software. Esri's Support website is at http://support.esri.coin/en`supl)ort. Support provided by an authorized distributor will be in accordance with the distributor's technical support program terms and conditions. 4. Other Esri Limited Use Programs: If Licensee acquires Products under any limited use program not listed above, Licensee's use of the Products may be subject to the terms set forth in the applicable launching page or enrollment form or as described on Esri's website in addition to the nonconflicting terms of this Addendum 4. All such program terms are incorporated herein by reference. E300 Page 34 of 44 10/15/2012 • ENTERPRISE ADVANTAGE PROGRAM (EAP) esr*ig ENTERPRISE LICENSE AGREEMENT (ELA) ADDENDUM (E125-ELA) Esri, 3$0 New York St., Redlands, CA 92373.8100 USA • TEL 909-793-2853 + FAX 909-793-5953 EAP Agreement No. 2012EAP7699 This Enterprise Advantage Program (EAP) Enterprise License Agreement (ELA) Addendum is composed of this page and the related Terms and Conditions contained in Articles 1 through 12 below. This EAP ELA Addendum adds additional terms and conditions to the ELA with respect to the EAP. Esri offers an Enterprise Advantage Program to Licensees that are implementing or have implemented a geographic information system (GIS) enterprise solution based on Esri technology. Licensee agrees to contract with Esri for and Esri agrees to provide Licensee with certain enhanced consulting services, training, and support available under the Enterprise Advantage Program for the authorized Licensee location as described herein. The Enterprise Advantage Program is not designed for Esri to provide project -specific professional services (e.g., application or database development for solutions or applications). All Licensee contact regardinp, EAP activities shall be through the point of contact identified below. Authorized EAP Contact Information (to be completed by Licensee) Contact: Sally Still Abbe Telephone: (806) 775-2106 Address: PO Box 2000 E-mail: sabbe@mylubbock.us City, State, ZIP: Lubbock, TX 79407 This EAP ELA Addendum supersedes any previous agreements or understandings related to the Enterprise Advantage Program. All other terms and conditions of the ELA and any preceding addenda will remain in full force and effect. ARTICLE 1—DEFINITIONS Capitalized terms that have not been defined in this EAP ELA Addendum shall have the meaning found in the applicable Esri license agreement. "Incident" means a communication via telephone or e-mail by Licensee to Support Services regarding technical problems with Software, Data, or Documentation. "Map Data" means any digital dataset(s), including geographic data, vector data coordinates, raster data, or associated tabular attributes supplied or used in the performance of this EAP ELA Addendum. "PSS" means Premium Support Services. "Secure Formats" means object code, executable code, or similar formats. "Term" means the initial term of this EAP ELA Addendum. "Work Product" means reports, documented analysis, sample code, prototype/unsupported code, or technical memorandums provided under this EAP ELA Addendum. E125-ELA Page 35 of44 08/30/2012 ARTICLE 2—ENTERPRISE ADVANTAGE PROGRAM 2.1 Enterprise Advantage Program Description. The Enterprise Advantage Program is a menu of services, training, and support that provides Licensee with the flexibility to select components that best meet its needs. The Enterprise Advantage Program components include the following: a. Technical Advisor. An Esri Technical Advisor who has expertise in Esri GIS software capabilities and has the ability to analyze and assess optimal solutions in the context of GIS enterprise implementation will be assigned to Licensee. Licensee will receive up to the number of ordered Technical Advisor hours. Licensee may elect to retain additional Technical Advisor Services for a supplemental price. Technical Advisors are not substitutes for services provided by Esri Support Services or Professional Services. Licensee will continue to contact Esri Support Services as the first point of contact for all technical support inquiries. If a custom application or other services are required, Licensee will need to enter into an agreement for use of Esri Professional Services. if Licensee requests the Technical Advisor to come to Licensee's site, Licensee will pay reasonable travel costs. The Technical Advisor in coordination with the Account Manager shall (1) Advise Licensee on GIS strategies, architectures, and product selection; (2) Advise Licensee on training needs, available business partner solutions, consulting support requirements, and business case development; (3) Act as Licensee's technical advocate in dealing with Esri; (4) Participate in annual account reviews; and (5) Serve as point of escalation if Licensee is not satisfied with the resolution of an incident through Esri Support Services. Annual Account Review. Licensee may attend a one (I) -day annual GIS strategy and account review with Licensee's Account Manager and Technical Advisor at Esri headquarters in Redlands, California. Key Esri technical and industry specialists may also attend the review to answer questions and discuss Licensee's ideas and suggestions regarding Esri software and support strategies. Licensee is responsible for its own travel expenses. As an option to hosting the review in Redlands, Esri may conduct the review at the appropriate Esri regional office as mutually agreed, and Esri's Redlands staff will have the option to participate either by telephone or by webcast. c. Learning and Services Credits (1) Licensee will receive the number of ordered Learning and Services Credits. Licensee may use the credits toward any combination of consulting services support, training, premium support, or related travel expenses as described below. (2) Licensee may order, for an additional price, additional Learning and Services Credits either (i) as a block of fifty (50) credits or (ii) as a block of one hundred (100) credits, not to exceed a total of two hundred (200) credits during the Term or each Renewal Period of this EAP ELA Addendum. If Licensee requests additional Learning and Services Credits over and above the initial two hundred (200) credits provided for in this paragraph, Licensee must order Learning and Services Credits along with additional Technical Advisor Services. E125-ELA Page 36 of44 08/30/2012 (3) Learning and Services Credit may be exchanged as follows: Technical Consulting Services Support consisting of review of technology strategy, systems design, prototyping, and other general technical consulting services support activities (Any project -related activities requiring a deliverable other than consulting time will be scoped, budgeted, and scheduled through a separate agreement.) Annual Premium Support Unlimited Instructor -Led Training (one [II person at an Esri Facility) or Virtual Classroom Client Site or Private Esri Site Training Event (for up to twelve [ 121 people) Additional Student Coaching Services (for up to fifteen [151 people) Virtual Campus Annual User License Related Esri travel and per diem expenses l credit = 2 hours 75 credits = Unlimited Incidents 1 credit = 1 day 9 credits = 1 day 0.75 credits = I day 9 credits = 1 day 1 credit = 480 Virtual Campus dollars as quoted (4) Unused Learning and Services Credits may be carried over to future years as long as Licensee remains an Esri Enterprise Advantage Program member. If this EAP ELA Addendum expires (exclusive of termination for default), any unused credits will expire six (6) months after the expiration of this EAP ELA Addendum; however, the Technical Advisor Services will not be available during this post -Term period. (5) Esri will provide EAP Contact with a monthly report outlining usage of Enterprise Advantage Program Learning and Services Credits to date. d. Exclusive Enterprise Webcast. Esri will provide an e-mail invitation to the EAP Contact for a quarterly webcast presenting business and technical information related to enterprise GIS. 2.2 Learning and Services Credit Use a. Authorization of Credit Use. Licensee will contact its Account Manager or Technical Advisor to consume Learning and Services Credits for a particular request. Esri will submit to Licensee a Learning and Services Credit estimate by e-mail for confirmation and authorization for use of the credits. b. Travel and Per ,Diem. Any Esri travel and per diem will be quoted separately. Licensee may direct Esri to use credits for travel and per diem as stated in Enterprise Advantage Program Description, Section 2.1 above, or Licensee will issue a purchase order and Esri will invoice Licensee for the travel and per diem expenses as described below in Article 6. c. Notification of Consumed Credits. Esri will notify Licensee in the event the authorized Learning and Services Credits are consumed prior to completion of the requested work. Licensee may elect to direct use of additional credits, if available; procure additional Learning and Services Credits; or notify Esri to stop work on such requested work. Esri reserves the right to discontinue work when the authorized credits are consumed. d. Review of Proposed Activities. Any activities proposed to be completed under the Enterprise Advantage Program will be subject to review and approval by Esri to ensure alignment with the intent of the program. 2.3 Defense or Military Application. At the time the Learning and Services Credits are requested or before any services are provided by the Technical Advisor, Licensee will inform Esri if any of the requested services, consulting, training, or support provided by Esri is directly related to a defense article or for a military application. ARTICLE 3—LICENSE GRANT 3.1 Training. The terms of the Esri License Agreement shall be applicable to all Licensee course participants and for all of Esri's Software, Data, Web Services, and Documentation licensed for use in any training course to be conducted. Esri may issue temporary Software licenses when there is an insufficient number of Software licenses available at Licensee's training facility. Upon conclusion of the training event, Licensee shall uninstall the temporary Software licenses and return to Esri any media provided. E125-£LA Page 37 of 44 08/30/2012 3.2 Work Product. Esri hereby grants to Licensee a nonexclusive, royalty -free license in the Work Product to use in connection with Licensee's authorized use of the Software and Data for support of which the Work Product was supplied. 3.3 PSS. The terms and conditions of the License Agreement for the affected Software will govern any updates, patches, hot fixes, or software provided under this EAP ELA Addendum. ARTICLE 4—WARRANTIES AND DISCLAIMERS 4.1 Warranties and Disclaimers a. All services, training, and Work Products will be provided in a professional and workerlike manner. b. Esri warrants for a period of thirty (30) days after delivery of the services that the services will conform to professional and technical standards of the software industry. c. Map Data Disclaimer. Map Data may contain some nonconformities, defects, errors, or omissions. MAP DATA IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. Without limiting the generality of the preceding sentence, Esri and its licensors do not warrant that the Map Data will meet Licensee's needs or expectations, that the use of the Map Data will be uninterrupted, or that all nonconformities can or will be corrected. Esri and its licensors are not inviting reliance on the Map Data, and Licensee should always verify actual Map Data. 4.2 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 THE ENTERPRISE ADVANTAGE PROGRAM OR ANY WORK PRODUCT PROVIDED HEREUNDER 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, WORK PRODUCT IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS THAT MAY LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL PROPERTY/ENVIRONMENTAL DAMAGE. ANY SUCH USE SHALL BE AT LICENSEE'S OWN RISK AND COST. ARTICLE 5—LIMITATION OF LIABILITY 5.1 Disclaimer of Certain Types of Liability. ESRI IS NOT 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 ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS EAP ELA ADDENDUM OR USE OF THE WORK PRODUCT, HOWEVER CAUSED ON ANY THEORY OF LIABILITY, WHETHER OR NOT ESRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY_ 5.2 General Limitation of Liability. ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER FOR DIRECT DAMAGES SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE EAP PROGRAM. 5.3 Applicability of Disclaimers and Limitations. The parties agree that Esri has set its prices and entered into this EAP ELA Addendum 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 APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ARTICLE 6---COMPENSATION 6.1 The fees for the initial term of the EAP are included in the ELA Fees. Fees for additional Learning and Services Credits or Technical Advisor Services will be invoiced upon receipt of Licensee's order. Licensee shall pay Esri within thirty (30) calendar days of receipt of invoice. E125-ELA Page 38 of44 08/30/2012 6.2 Pricing for new or additional Esri service offerings will be in accordance with Esri's most current price schedule at the time of purchase. 6.3 Licensee may elect to use Learning and Services Credits for actual travel expenses of Esri employees plus a standard burden or to be invoiced at the actual cost for travel expenses plus a standard burden. Meals will be charged on a per diem basis. ARTICLE 7—TERM AND TERMINATION 7.1 The Term of this EAP ELA Addendum shall run concurrent with the term of the ELA. 7.2 Either party may elect not to renew the EAP ELA Addendum for its sole convenience at the end of any term upon thirty (30) days' written notice to the other party, in which event the EAP shall expire. 7.3 Either parry may terminate this EAP ELA Addendum for a material breach that is not cured within ten (10) days after written notice to the other party or for bankruptcy or insolvency of the other parry. 7.4 Upon termination or expiration of this EAP ELA Addendum a. Except when termination results from nonrenewal, all outstanding Learning and Services Credits shall be subject to cancellation, acceptance, or rejection at the sole discretion of Esri- b. In the event of termination for a material breach, the due dates of all invoices for amounts owed by Licensee to Esri shall be accelerated automatically so that such amounts become due and payable on the effective date of termination, regardless of the payment term provisions set forth in this EAP ELA Addendum. c. Except where a provision specifically provides otherwise, any cause of action or claim of one (1) party accrued to or to accrue because of any breach or default of the other party and any accrued license rights shall survive to the degree necessary to permit their complete fulfillment or discharge. ARTICLE 8—CONFIDENTIALITY 8.1 Confidential Information. It may be necessary for Esri or Licensee to disclose to the other parry certain confidential information under this EAP ELA Addendum. The access code or password for the PSS website, information disclosed at review sessions, and any Work Product are confidential information of Esri. Licensee data contained in the Esri PSS website database is confidential information of Licensee. Each party shall use the confidential information described above only for exchanging information needed to provide the PSS contemplated by this EAP ELA Addendum. Within sixty (60) days of termination of this EAP ELA Addendum, each party shall return or destroy and provide a certification of destruction of the confidential information of the other party. Notwithstanding anything herein to the contrary, the parties hereto acknowledge the application of the Texas Public Information Act, Chapter 552 of the Texas Government Code, to this EAP ELA Addendum and the parties hereto agree to adhere to its provisions. 8.2 Work Product a. Insofar as its rights may be legally restricted, Licensee agrees not to reverse engineer or decompile Work Product delivered only in Secure Formats. For Work Product delivered in source code or other human -readable formats, Licensee will have met its obligations under this EAP ELA Addendum if its disclosure of Work Product is limited to such items in Secure Formats, provided that the means for reverse engineering, decompiling, or disassembling such Work Product is withheld from such disclosure, and the person or entity in receipt of such Work Product similarly agrees not to perform such acts or allow others to do so. b. Except as provided in the preceding paragraph, Licensee shall not disclose the Work Product to employees or third parties without the advance written consent of Esri. However, Licensee may, without such consent, make such disclosures to employees to the extent reasonably required to allow Licensee to use the Software or Data in a manner authorized under applicable licenses. c. The disclosures permitted under this section shall not relieve Licensee of its obligation to maintain the Work Product 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 Work Product to employees or third parties E125-ELA Page 39 of 44 08/30/2012 as permitted in the preceding paragraph, Licensee shall inform such employees or third parties of the obligations in this EAP ELA Addendum and obtain their agreement to be bound by them. 8.3 Excluded Confidential Information. Licensee shall not provide to Esri or disclose to the instructor any data or information that is personally identified information (P11), including, but not limited to, GLBA or HIPAA type data or information, or critical infrastructure information (CII) from the US Department of Homeland Security. Notwithstanding anything in this Addendum to the contrary, Esri retains the right to refuse acceptance of any nonpublic personal information (NPI) or customer information regardless of the form of disclosure. Esri will only accept receipt of information from Licensee that comports with the exceptions set forth in Subsections 4(B) and 4(C)(ii) of Section 509 of the Gramm -Leach - Bliley Act (PL 106-102) (15 USC Section 6809) and implementing regulations thereof. 8.4 Other Exchange of Confidential Information. Any other exchange of confidential information between the parties shall require execution of a nondisclosure agreement signed between the parties separate from this EAP ELA Addendum. ARTICLE 9—PREMIUM SUPPORT SERVICES TERMS AND CONDITIONS 9.1 Premium Support Services. Should the Licensee choose to use Learning and Services Credits for PSS, the terms of this Article 9 shall also apply. 9.2 Premium Support Availability. Licensee may use Learning and Services Credits for PSS (annually) for any product covered under Esr?s standard maintenance subscription, provided that Licensee is current on maintenance for applicable Esri Software. Esri shall provide PSS for the Term of the EAP ELA Addendum. 9.3 Premium Support Description. PSS shall provide (1) a designated Premium Support Coordinator ("PSC"); (2) unlimited telephone and e-mail support accessible to Licensee twenty-four hours per day, seven days per week, three hundred sixty-five days per year (24/7/365); (3) Priority Incident Management; and (4) other additional enhanced support and services. 9.4 Premium Support Coordinator. Esri shall assign a PSC to Licensee. The assigned PSC shall work directly with Licensee's Authorized Contact ("LAC") and shall oversee all of Licensee's Premium Support Incidents. Licensee may select up to two (2) individuals to report Premium Support Incidents to Support Services and work directly with PSC regarding all such Incidents_ The PSC shall a. Be familiar with Licensee's GIS software architecture and infrastructure to perform the scope of support pursuant to this Article 9; b. Verify that all open Premium Support Incidents of Licensee are prioritized above Incidents opened pursuant to standard maintenance; c. Work closely with Senior Support Analysts toward the resolution of all open Premium Support Incidents; and d. Provide LAC with a daily status update on all open Premium Support Incidents or as agreed upon by PSC and Licensee. Esri may replace PSC during the Term of the EAP ELA Addendum with a written notification to Licensee. 9.5 Telephone and E-mail Support. Esri shall provide support to Licensee for Software by telephone or e-mail and shall include the following: a. LAC may open an Incident by calling Support Services or logging the Incidents via the PSS website. An e-mail acknowledgment shall be sent to LAC for a new Incident logged via the PSS website. The assigned PSC shall use commercially reasonable efforts to call or send an e-mail response within one (1) hour of receipt of a new Incident to notify Licensee that the logged Premium Support Incident is in the initial stage of review; b. LAC shall have the ability to log Premium Support Incidents via the telephone. Incidents logged in this manner will receive personalized messaging and Priority Incident Management; and c. PSC shall be available to LAC from 5:00 a.m, to 5:00 p.m., Pacific time, Monday through Friday, except on Esri holidays. In the event that PSC is not available during such time, LAC's telephone calls and a -mails will be routed to E 125-ELA Page 40 of 44 08/30/2012 a Senior Support Analyst who can assist LAC. PSC will be notified of the Incident. Telephone calls and a -mails during all other times (after hours, weekends, and Esri holidays) will be routed to Senior Support Analysts. 9.6 Priority Incident Management. Priority Incident Management shall include the following: a. Premium Support Incidents reported by LAC will be given priority handling after the initial Premium Support Incident is created and documented; b. Software defects affecting Licensee will be a priority for discussion of the User Advocacy Group; and c. For identified Software defects that are approved for an out -of -cycle hot fix or patch, PSC shall assist in presenting the hot fix or patch to LAC and verify that the delivered hot fix or patch addresses the reported issue. 9.7 Other Additional Enhanced Support and Services. Esri shall provide additional offerings to Licensee as a part of PSS, which include, but are not limited to, the following: a. Premium Support Website Access. LAC shall have access to the PSS website. LAC shall have the ability to log and track the status and completion of all identified Premium Support Incidents on this website. LAC may log and view their Incidents and access other PSS-related tools and information through this website. b. System/Environment Profile. Through the PSS website, Licensee shall have access to an Esri database to enter and maintain data regarding Licensee's equipment, applications, and skill sets associated with Esri technology. c. PSS Software Alert Newsletter. Esri shall provide to Licensee a news bulletin that discusses key current issues in Software being investigated by Esri. d. Quarterly Teleconference Meeting. Esri and Licensee shall conduct a quarterly teleconference meeting to discuss Licensee's Premium Support Incidents. Esri shall make available the assigned Account Manager, PSC, Premium Support Manager, and other Esri staff as deemed necessary by Esri. Details of all PSS offerings can be found at www.esri.com/servicea/pss/components.btmI. 9.8 PSS Restrictions and Exclusions a. Excluded Software. PSS is not available for third -party software. Esri is not responsible for errors attributable to third - party software used in conjunction with or built upon Software. b. English Language. All communications will be conducted in the English language except by agreement of both parties. c. Acknowledgment. Licensee acknowledges and agrees that the report of an error or defect of any Software is not a guarantee that it can or will be corrected. At Esri's sole discretion, Software is corrected on a priority basis and is subject to release schedules determined by Esri. d. Hardware Support. Esri does not provide support for hardware, including but not limited to, graphics cards, monitors, plotters, graphics printers, digitizers, and modems, except to answer questions regarding how standard, supported devices interface with Software. e. Exceptions to PSS. The following are not covered by PSS: i) Any problem resulting from Licensee's misuse, improper use, unauthorized modification, or damage of the Software or Licensee's combining or merging the Software with any hardware or software not supplied or identified as compatible by Esri; ii) Any problem resulting from third party hardware or software; iii) Errors in any version of the Software other than the officially supported version of Software; and iv) Any on -site support or implementation services on -site or otherwise, including, but not limited to, those provided by Esri Professional Services or any third party. ARTICLE 10—CONSULTING SERVICES SUPPORT TERMS AND CONDITIONS 10.1 Consulting Services Support. Should Licensee choose to use Learning and Services Credits for consulting services support, the terms of this Article 10 shall also apply. E125-ELA Page41 of44 08/30/2012 10.2 Patents and Inventions a. Each party shall retain title to any inventions, innovations, and improvements ("Inventions") made or conceived solely by its principals, employees, consultants, or independent contractors (hereinafter called "Inventors") during the term of this Addendum. The parties shall jointly own any Invention(s) made or conceived 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. b. Except as provided in the next paragraph, where an Invention is jointly owned, each parry shall share equally the costs of acquiring protection for the Invention and furnish the other joint owner with assistance reasonably required for acquiring protection. c. A joint owner ("Assigning Owner") electing not to acquire or maintain protection on any Inventions in any country or countries shall assign such its rights in such Inventions to the other joint owner ('Beneficial Owner") as is necessary to enable the Beneficial Owner to protect such Inventions in such country or countries at its expense and for its exclusive benefit. In such event, the Assigning Owner shall make available to the Beneficial Owner the Assigning Owner's Inventors and shall otherwise cooperate with the Beneficial Owner in order to assist the Beneficial Owner in protecting such Inventions. The Beneficial Owner shall reimburse the Assigning Owner for all reasonable out-of-pocket expenses incurred in rendering such assistance. if any such Inventions are so protected by the Beneficial Owner, then the Assigning Owner shall have a license with respect to the subject matter of such protected Inventions in such country or countries. d. 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 the Software and shall otherwise not be unreasonably withheld by either party. 10.3 Ownership. Except as specifically granted in this EAP ELA Addendum, Esri or its licensors own and retain all right, title, and interest in the Work Product. ARTICLE l 1--TRAINING TERMS AND CONDITIONS 11.1 Training. Should Licensee choose to use Learning and Services Credits for training or coaching services, the terms of this Article 11 shall also apply. 11.2 Training Location. Training may be conducted at Licensee's site, at an Esri Learning Center or via the web. 11.3 Course Descriptions. The Esri Software training courses to be conducted, their location, the dates during which the courses are to be conducted, the number of participants, and registration requirements are set forth in the Esri Training catalog located on the Esri training website (httpa/training.esri.com). All courses shall be conducted in substantial conformity with the course descriptions outlined on the Esri training website. Esri reserves the right to modify course content when necessary due to Software technical capabilities or limitations. Licensee may utilize coaching services immediately before or immediately following an Esri training course to familiarize Licensee's student with the software or to review and practice course concepts with an instructor's guidance. 11.4 Esri's Responsibilities a. 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 "Students") on scheduled dates. Esri will provide each student with a course manual, where applicable. b. Esri will confirm Learning Center training event scheduled dates approximately ten (10) business days prior to the training event start date. c. Esri will confirm Licensee Site training events upon receipt of completed Client Site Training Request Form and intended payment method. 11.5 Licensee's Responsibilities a. Licensee must ensure the protection of Esri's copyrights. Licensee shall not copy or distribute, or permit a third party to copy or distribute, any of Esri's training material(s). b. Licensee is not authorized to resell seats to an Esri training event unless explicitly authorized in writing by Esri. E 125-ELA Page 42 of 44 08/30/2012 c. Licensee must ensure that all Students have received confirmation from Esri to participate in an Esri training event. An unregistered Student is not permitted to view or participate in a Virtual Classroom training event, Esri reserves the right to disconnect any Student who permits access to unregistered Students. d. Licensee must confirm that all registered Students meet the applicable minimum prerequisites for the applicable training event set forth on Esri's training website. e. Licensee must submit registration with a confirmed payment commitment at least seven (7) business days before the training event start date. If Licensee submits a registration without a confirmed payment, Esri will not confirm the seat reservation. The reservation will be added to the waiting list pending payment confirmation and subject to availability. £ US government export control laws and regulations prohibit US persons from engaging in transactions with certain denied persons found on various US Government Denied Persons lists (e.g., US Department of the Treasury's Specially Designated Nationals List, US Commerce Department's Denied Persons/Entity List). To meet these export requirements, Licensee must submit to the Esri 'Training Event Assistant a list of the names of Students who are to attend any training event. Licensee must submit the list of Student names to Esri at least three (3) business days before the training event start date. Any Student whose name is found on any of the various US Government Denied Persons lists will not be permitted to attend training. g. Licensee is responsible for all Student travel arrangements. Esri assumes no responsibility for losses from nonrefundable travel arrangements resulting from denial of a Student's participation due to US government export licensing requirements, course scheduling changes, or cancellations. h. Licensee must provide written notice to Esri's Customer Service at servicegesri.com of any cancellation, rescheduling, or Student substitution requirements and receive confirmation of such change(s) prior to the training event start date. i. Students may not use audio or video recording equipment within the classroom without prior written approval from Esri. Esri reserves the right to record a classroom training event for future rebroadcast. j. Licensee is responsible to ensure that it adheres to the course, facility, and equipment, as well as Internet bandwidth and connectivity requirements for Esri Training as found at bM2://training.esri.com/gatewaylindex.cfm?fa =trainingOptions.gateway. k. Where the Esri Mobile Lab equipment is utilized at Licensee's domestic site, the following terms apply: • Upon receipt, Licensee must immediately report any damage to the Mobile Lab equipment to the Training Event Assistant. • Licensee must keep the Mobile Lab equipment in a secure, locked area between training event sessions. ■ Licensee must ensure that only registered Students use the Mobile Lab equipment, • Licensee is responsible for any and all loss of, damage to, or theft of the Mobile Lab equipment while in Licensee's possession. ■ Licensee warrants that it maintains sufficient insurance coverage to enable it to meet its obligations created by this Addendum and by law. • The Esri instructor will check all Mobile Lab equipment following the completion of training. Any damage to the Mobile Lab equipment due to Student use, excluding normal wear and tear, will be brought to the attention of Licensee by written notice. Licensee hereby agrees to be financially responsible for any repair or replacement of equipment resulting from such damage. • Licensee shall make the Mobile Lab equipment available for freight pickup immediately upon conclusion of the Esri training event. 11.6 Cancellation and Rescheduling Policy Individual Student Seats When a Student's place in a training event is filled by another person from the same organization, a Student substitution is allowed at no cost provided Esri's Customer Service is notified three (3) business days in advance of the training event start date. Should a Student substitution occur without three (3) business days' notification, an additional, nonrefundable transfer and data processing fee may be assessed. A Student may transfer from one (1) scheduled Esri Learning Center training event to another one (1) time at no additional charge provided Esri's Customer Service is notified three (3) business days in advance of the training event start date. Subsequent transfers or transfers that occur without three (3) business days' notification may incur a transfer fee. Students may cancel their enrollment in a training event provided Esri's Customer Service is notified three (3) business days in advance. If three (3) business days' notification is not provided, Student may be charged the full Student Seat fee. E 125-ELA Page 43 of 44 00=012 Client SitelPrivate Class/Coaching Services (Training Event) When a Student's place in a training event is filled by another person from the same organization, a Student substitution is allowed at no cost provided Esri's Customer Service is notified three (3) business days in advance of the training event start date. A training event may be rescheduled by the Licensee provided Esri's Customer Service is notified three (3) business days in advance of the training event start date. If appropriate notice of rescheduling is provided, Licensee is responsible for reasonable travel expenses and shipping costs. A training event may be canceled by the Licensee provided Esri's Customer Service is notified three (3) business days in advance of the training event start date. If appropriate notice of cancellation is provided, Licensee is responsible for any reasonable travel expenses and shipping costs. If a training event is canceled without appropriate notice, Licensee is responsible for the full training event fee. If cancellation of a training event is necessary due to Force Majeure, the affected party 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. If Esri is unable to conduct the training on the scheduled date, Esri will notify Licensee at least three (3) business days before the scheduled date. ARTICLE 12—GENERAL PROVISIONS 12.1 Intellectual Property Rights Attribution. Licensee shall retain any copyright, patent, or trademark notices on all items licensed under this EAP ELA Addendum and shall take other necessary steps to protect Esri's or its licensor's intellectual property rights. 12.2 Nonsolicitation of Contractor Personnel. Licensee shall not solicit for hire any Esri employee who is associated with efforts called for under this EAP ELA Addendum during the term and for a period of one (1) year thereafter. In the event the foregoing provision is breached, Licensee shall pay Esri liquidated damages for recruiting and training costs equal to twelve(] 2) months of the employee's compensation plus any legal expenses associated with the enforcement of this provision. 12.3 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 US embargoed country (or to a national or resident of any US embargoed country); (ii) any person on the US Treasury Department's list of Specially Designated Nationals; (iii) any person or entity on the US Commerce Department's Denied Persons List, Entity List, or Unverified List; or (iv) any person or entity where such export or reexport violates any US export control laws or regulations including, but not limited to, the terms of any export license or license exemption and any amendments and supplemental additions to US export laws as they may occur from time to time. E 125-ELA Page 44 of 44 08/30/2012