SOFTWARE LICENSE AND
SUPPORT AND MAINTENANCE SERVICES AGREEMENT
This Software License and Support and Maintenance Services Agreement (this "Agreement"), effective as of the last signature date below ("Effective ])ate'') by and between Landis+Gyr Technology, Inc. ("Landis+Gyr'') and City of Anaheim ("Customer'') sets forth the parties' rights and obligations with respect to the Software licensed by Customer from Landis+Gyr herein.
Landis+Gyr is a provider of software and software maintenance services. Customer desires to obtain a license to Landis+Gyr products and to establish terms for acquiring on-going maintenance support services for that software. Landis+Gyr agrees to license that software and provide those maintenance services on the terms set forth in this Agreement. Terms bearing initial capital letters used herein have the meanings ascriped to them when introduced as bold text in the body of this Agreement or,.ifnot so defined in the body, as set forth in the Glossary section of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litig~tion, citation, summons; subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise. . , . "Authorized Users" means all employees of Customer and contractors or consultants and their respective employees (if any) that C~tomer retains or grants any sublicense hereunder to provide services. "Defect" means any failure of the Software to conform in all material respects to and perfonn in accordance with its Documentation.·
"Documentation" means any and all manuals, instructions, specifications and other documents and materials that Landis+Gyr provides or makes available to Customer in any medium and which describe the functionality, co~ponents, features or requirements of the Software, and as those materials may be supplemented over time through the ~~livery of Maintenance Services. "Intellectual Property ~gb~s" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence Wider or related to any patent, copyright, trademark, trade secret, database protection, or, other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any-part.of the world. "Law" means any statute., law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decr~e, or.'other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction. "Support and Maintenan~e'Services" means the services ofLandis+Gyr set forth on Exhibit A~ "Permitted Use" means us.e .o(the Software by an Authorized User for the benefit of Customer in the ordinary course of internal business operations.
·'
1 "Software" means the executable, object code version of the Landis+Gyr proprietary software listed on an applicable purchase order, and any Maintenance Releases provided to Customer pursuant to this Agreement with the initial Software indicated as Command Center which has been previously delivered to Customer. The parties agree that such Software already delivered is governed by the tenns and conditions herein.
2. Term and Termination
3. a Term. The licenses granted under this Agreement commenced on the date of delivery and continue perpetually unless this Agreement is terminated as provided in this Section 2. b. Termination. Upon breach of any obligations under this Agreement by one party, the other party may terminate this Agreement and any license granted hereunder upon thirty (30) days written notice to the defaulting party if such breach has not been cured within the thirty (30) day period. Notwithstanding the foregoing, with respect to any breach of the obligations set forth in the Section entitled "Nondisclosure," the non-breaching party may terminate this Agreement upon five (5) days written notice if such breach has not been cured within the five-day period. Within thirty (30) days of termination for default, Customer shall certify in writing to Landis+Gyr that all copies of the Software and any Landis+Gyr Confidential Information, in any form, have been destroyed or returned to Landis+Gyr.
License.
a License Grant. Subject to and conditioned on Customer's payment offees and compliance with all other terms and conditions of this Agreement, Landis+Gyr hereby grants to Customer a non-exclusive, non-sublicensable, and non-transferable license to use the Software and Documentation solely for the Pennitted Use. b. License Restrictions. Customer shall not, and shall not permit any third party to, (a) sublicense, distribute ~r otherwise transfer the Software to any third party, (b) modify or create derivative works of the Software, (c) use the Software with any operating system or CPU architecture other than as designed in the Documentation, ( d) export the Software in violation of U.S. ·Dept. of Commerce and other applicable export regulations, (e) decompile, decipher, disassemble, reverse engineer or otherwise discover the source code of the Software, (f) extract or modify any third party software or content included with the Software, or use such third party software or content with any software or application other than the Software, Qr (g) use the Software in any manner except as permitted under, and in connection with thi$ Agreement.
c. Deliver y. Landis+Gyr shall deliver one copy of the Software electronically, on tangible media, or by other means to Customer.
d. Limited Copying Right. For those items of Software which are not firmware, middleware or Tech Studio, Customer may make a reasonable number of copies of the Licensed Software solely for backup, test, archival or disaster recovery purposes. Customer may make a reasonable number of copies of the Licensed Documentation for any use authorized in this License. Any copy which Customer makes of any Licensed Software or Licensed Documentation, fa. whole or in part, is the property of Landis+Gyr, and where applicable Landis+Gyr's affiHates and suppliers, as set forth in this License. Customer agrees to reproduce and include in their entirety and without alteration· Landis+Gyr's patent, 2 4.
5. copyright, trademark and other proprietary rights notices on any copy of any Licensed Software and Licensed Documentation.
Fees and Payments.
a. The fees payable for the License and the Support and Maintenance Services and Premium Support Services are specified in Exhibit B.
b. Customer shall pay all fees, charges and other amounts due under this Agreement to Landis+Gyr in United States Dollars by electronic funds transfer to a bank account designated in writing by Landis+Gyr.
c. Customer shall pay all fees, charges and other amounts due hereunder within thirty (30) days of the invoice date. Any amounts due and unpaid by Customer shall bear late fees equal to one percent (I%) per month or, ifless, the highest amount permitted by law. d. Customer shall pay directly to tµe relevant taxing authority, or reimburse Landis+Gyr for its payment of, any and all sales, use, excise or other tax arising out of or relating to this Agreement, excluding taxes payable with respect to the income ofLandis+Gyr. Customer shall supply to Landis+Gyr certification or other required evidence of any exemption Customer may claim with respect to such taxes.
e. Pricing by Landis+Gyr set forth in Exhibit B will remain firm for two (2) years from the Effective Date. Following year two (2), pricing set forth in the pricing table io Exhibit'.!\ shall be subject to an annual increase equal to the percentage annual adjustment in the CPf.
The CPI will be obtained from U.S. Bureau of Labor Statistics (www.bls.gov/cpi) ~d is designated as of the June-to-June twelve-month percentage change to the Consumet I;\rlce Index- Urban Wage Earners and Clerical Workers, Not seasonally adjusted.
Intellectual Propertv Rights.
a. Intellectual Property Ownership. Customer acknowledges and agrees that:
1. the Software and Documentation are licensed, not sold, to Customer by Landis+Gyr and Customer does not have under or in connection with this Agreement any ownership interest in the Software or Documentation, or in any related Intellectual Property Rights;
ii. Landis+Gyr is the sole and exclusive owner of all right, title and interest in and to the Software and Documentation, including all Intellectual Property Rights relating thereto, subject only to the limited license granted to Customer under this Agreement; and
iii. Customer hereby unconditionally and irrevocably assigns to Landis+Gyr, its entire right, title and interest in and .to any Intellectual Property Rights that Customer may now or hereafter have in or relating to the Software or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.
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7. 8.
b. Customer Cooperation and Notice of Infringement. Customer shall, during the Tenn:
i. take all reasonable measures to safeguard the Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access;
ii. at Landis+Gyr's expense, take all such steps as Landis+Gyr may reasonably require to assist Landis+Gyr in maintaining the validity, enforceability and Landis+Gyr's ownership of the Intellectual Property Rights in the Software and Documentation;
iii. promptly notify Landis+Gyr in writing if Customer becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of Landis+Gyr's Intellectual Property Rights in or relating to the Software or Documentation; or (ii) any claim that the Software or Documentation, including any production, use, marketing, sale or other disposition of the Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and iv. at Landis+Gyr's sole expense, fully cooperate with and assist Landis+Gyr in all reasonable ways in the conduct of any Action by Landis+Gyr to prevent or abate any actual or threatened infringement, misappropriation or violation of Landis+Gyr's rights in, and to attempt to resolve any Actions relating to, the Software or bocunientation, including having Customer's employees testify when requested and making available for discovery or trial relevant records, papers, infonnation, samples, specimens and the like.
c. No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Software or Documentation.
Audit Procedure. Landis+Gyr will have the right, upon thirty (30) days prior written notice, to inspect and audit Customer's premises and/or Customer's use of the Software under this Agreement at any time during the tenn. All audits will be conducted during nonnal business hours and in a manner that does not unreasonably interfere with Customer's business operations, to verify that the Software is being used and protected as specified in this Agreement. During such audits, Landis+Gyr's personnel will comply with Customer's standard site rules and procedures. Landis+Gyr shall only examine infonnation directly related to Customer's use of the Software
Compliance with License. Landis+Gyr may tenninate this Agreement for breach of a material condition of the License granted hereunder .
Limited Warranty
a. Landis+Gyr warrants to Customer that the Software (as delivered by Landis+Gyr and as unmodified by Customer) will be free from material Defects and will function properly in conformity with the Documentation for a period thirty (30) days from the date of delivery (the "Warranty Period").
4 9.
10. b. To the extent that, within the Warranty Period, Customer reports any Defects in the Software constituting a breach of the warranty set forth in Subsection 8.a above , then Landis+Gyr, as its sole responsibility for such Defect, shall, at no separate charge to Customer, take all commercially diligent, prompt efforts to resolve such Defect in accordance with the corrective Support and Maintenance Services obligations described in Exhibit A.
c. Exce ptions. The warranty stated at Section 8.a. shall not apply to any error or deficiency in the Software Landis+Gyr reasonably believes was caused by (a) any modifications to the Software created by any person other than Landis+Gyr; (b) operation of software other than the Software (for example, operating system or (iatabase software or plug-ins provided by Customer or provided by any third party to Customer) or any hardware or other equipment; (c) use of the Software in conjunction with Customer data that does not conform with the format of data as specified in the Documentation; or ( d) misuse by Customer of the Software. In the event Landis+Gyr provides error correction services and, in doing so, reasonably determines that the error was not caused by the Software, Landis +Gyr shall be entitled to charge and Customer shall pay for the time and materials expended at Landis+Gyr's then-standard commercial rates. d. Disclaimer of Warranties. OTHER THAN THE EXPRESS WARRANTIES SET FORTH ABOVE , LANDIS +GYR MAKES NO FURTHER WARRANTY OF ANY KIND INCLUDING ., WITHOUT LIMJTA TION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH
RESPECT TO THE SOFTWARE, DOCUMENTATION OR ANY SERVICE
PROVIDED BY LANDIS+GYR HEREUNDER.
Support and Maintenance Services. The Support and Maintenance Services to be acquired by Customer and provided by Land is+Gyr are specified in Exhibit A.
Confidential Information.
a Confidential Information. From time to time during the Term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") non-public, proprietary, confidential information about its business affairs , products, services, confidential intellectual property, trade secrets, third party confident ial information and other sensitive or proprietary information in oral, written, electronic or other intangible form marked or indicated as ''Confidential" or "Proprietary" at the time of disclosure (collectively, "Confidential Information").
Confidential Information, however, shall not include: (a) lnfonnation which is alr~ady generally available to the public; (b) Information which hereafter becomes generally available to the public, except as a result of the direct or indirect action of the Receiving Party in breach of this Agreement; (c) Information known to the Receiving Party or its Representatives on a non-confidential basis prior to receipt by the disclosing party; ( d) Information that is independently developed without access to the Disclosing Party's Confidential Information; and ( e) Information disclosed under legal compulsion; provided, however, that prior to a disclosure pursuant to an order or applicable law, the Receiving Party, to the extent permitted by law, promptly provides the other party written notice of such proposed disclosure and reasonably cooperates with the other party in its attempts to limit or prevent such disclosure. The Receiving Party shall use the Confidential Information solely for the performance ohhis Agreement and shall not disclose or permit access to Confidential Information other than to its Affiliates and its or 5 11.
their employees, officers, directors, attorneys, accountants and financial advisors (including insurers) (collectively, "Representatives") who: (a) need to know such Confidential Information for the performance of this Agreement; (b) know of the existence and terms of this Agreement and ( c) are bound by confidentiality obligations no less protective of the Confidential Information than the terms contained herein. These non-disclosure obligations shall survive the termination of this Agreement and shall continue for a period of five (5) years thereafter. lnfonnation need not be marked "Confidential" to be considered Confidential Information. "Confidential Information" includes any Confidential Information disclosed prior to the effective date of this Agreement.
b. Safeguarding Confidential Information. The Receiving Party shall safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and no less than a reasonable degree of care. The Receiving Party shall promptly notify Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to cooperate with Disclosing Party to prevent further use or disclosure. The Receiving Party will be responsible for any breach of this Agreement caused by its Representatives.
c. No Rights in Confidential Information. Customer and Landis+Gyr hereby acknowledge and agree that all Confidential Information of the other party shall remain the sole and exclusive property of such other party and that the receiving party shall have no proprietary rights, title or interests therein except as otherwise provided in this Agreement.
d. Termination. Upon termination for any reason, or at any other time that Customer or Landis+Gyr demands, the other party shall promptly deliver and/or certify destruction of Confidential Information, as appropriate, to the requesting party all Confidential Information (copies and originals) of the requesting party as may be in the other party's possession or under its control.
Indemnification
a. Indemnity. Landis+Gyr shall defend and indemnify Customer against any claim brought by a third party alleging that the Software infringes any United States patent published as of the Effective Date or any United States copyright, trade secret or trademark ("Claim"), provided that Customer (a) promptly notifies Landis+Gyr in writing of the Claim, (b) allows Landis+Gyr, at its own expense, to control the defense or settlement of the Claim, and (c) gives Landis+Gyr all information and assistance necessary to defend the Claim. b. Other Remedies. In its defense or settlement of the Claim, Landis+Gyr may, at its sole option and expense: (a) obtain for Customer the right to continue using the Software, or (b) replace or modify the Software to make it non-infringing without materially irnpaifim its performance or functionality. Customer shall cooperate fully with Landis+Gyt,;s ""C- implementation of any of the actions described in this subsection. ..., c. Exclusions. Landis+Gyr shall have no liability for any claim to the extent that,jt results, from (a) m~difications by any~ne other than Landi~+Gyr, (b) combination of tpe .
Software with Customer's eqwpment or non-Land1s+Gyr software or content, (c-) Customer's failure to implement modifications (including without limitation Updat~ 6 12.
13. Releases as defined in Exhibit A) prov ided by Landis+Gyr to avoid infringement, or (d) Landis+Gyr's compl iance with specifications provided by Customer. d. Sole Remedy. LANDIS+GYR'S INDEMNITY OBLIGATIONS UNDER THIS
SECTION CONSTITUTE TIIE SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
Limitation of Liabili ty
a. EXCEPT FOR VIOLATIONS OF EITHER PARTY'S INTELLECTUAL PROPERTY
RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING
FOR LOSS OF USE, DATA, BUSINESS OR PROFITS, AND CLAIMS AGAINST
LICENSEE BY A THIRD PARTY) RELATED TO OR ARISING OUT OF THIS
AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY,
WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. b. EXCEPT FOR VIOLATIONS OF EITHER PARTY'S INTELLECTUAL PROPERTY RIGHTS , AND LANDIS+GYR'S OBLIGATIONS UNDER SECTION 11
(INDEMNIFICATION), EAC H PARTY 'S LIABILITY TO THE OTHER UNDER ANY
PROVISION OF THIS AGREEMENT, OR ANY TRANSACTION CONTEMPLATED
BY THIS AGREEMENT, SHALL BE LIMITED TO THE AMOUNT OF LICENSE
FEES AND SUPPORT SERVICES FEES ACTUALLY PAID BY CUSTOMER TO LANDIS +GYR IN THE PRIOR TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. ALL OF A PARTY'S EXPENDITURES
WITH RESPEC T TO ANY LIABILITY RELATED TO THIS AGREEMENT SHALL BE AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT.
Support and Maintenance Services; Other Services.
a. Upon Customer's payment of the Support and Maintenance Services fees , Landis+Gyr will provide Support and Maintenance Services under the terms and conditions of Exhibit A (Support and Maintenance Services Terms and Conditions). b. Upon Customer's prior written notice to Landis+Gyr and payment of the Premium Support Services fees, Landis+Gyr will provide Premium Support Services under the terms and conditions of Exhibit C (Premium Support Services Agreement Advanced Metering Infrastructure (AMI)).
c. During the Term of this Agreement, Landis+Gyr may also perform certain implementation, consulting, training and/or other services ("Professional Services") as specified in mutually agreed upon written Statement of Work ("SOW"). Each SOW will contain a reference identifying it as a SOW under this Agreement and will contain the following information, as applicable:
i. description of scope of the Professional Services;
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15. 16.
ii. any other items to be delivered ("Deliverable");
iii. the fees;
1v. an estimated schedule;
v. assumptions on which the performance of the Professional Services or delivery of the Deliverables is conditioned; and
vi. itemization, if any, of Reimbursable Expenses as identified.
Notices. Any notice required or permitted to be given in writing under this Agreement shall be: (a) mailed by U.S. certified mail, postage prepaid, return receipt requested; (b) personally delivered to a designated representati ve of the receiving party; or ( c) sent by email (provided receipt thereof is confirmed via email or in writing by the recipient) Any such notice shall be deemed given: (i) three business days after being deposited in the U.S. mail, certified, postage prepaid and return receipt requested; (ii) when received if personally delivered; or (iii) when received if sent in an email , the receipt of which has been confirmed by the recipient. All such communications shall be mailed, sent or delivered, addressed to the party for whom it is intended, using the contact information provided below or such other contact information as the parties may designate from time to time:
If to Customer:
City of Anaheim
Anaheim Public Utilities
201 S. Anaheim Blvd, Suite 701
Anaheim, CA 92805
Attention: John Pellegrino
Telephone: (714) 765-4186
City of Anaheim
200 S. Anaheim Blvd, Suite 217
Anaheim CA 92805
Attn: City Clerk
Facsimile Number: (714) 765-4105
Ifto Landis+Gyr:
LANDIS+GYR Technology , Inc.
30000 Mill Creek Ave, Suite I 00
Alpharetta, GA 30022
Attention: Legal Department
Injunctive Relief. Customer agrees that any breach of Customer's obligations with respect to Landis+Gyr's proprietary rights may result in an irreparable injury for which money damages will not be an adequate remedy and that, in such event, Landis+Gyr shall be entitled to injunctive relief without bond in addition to any other relief the court may deem proper.
Survivabili ty. Sections entitled Fees and Payment, Ownership, Nondisclosure, Limitation of Liability, Indemnification, Dispute Resolution , General and Definitions shall survive this Agreement's termination .
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17. 18.
Applicable Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California. Each party agrees and consents that any dispute arising out of this Agreement, however defined, shall be brought in the State of California in a court of competent jurisdiction.
License and Agreement. This Agreement and the Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereot and supersedes all prior oral or written agreements, commitments, or understandings with respect to the matters provided for herein. No amendment, modification, or discharge of this Agreement will be valid or binding unless set forth in a writing signed by both parties. No waiver by a party of a breach of or a default under any of the provisions of this Agreement will be effective unless contained in a writing signed by the non-breaching/non-defaulting party. Neither the waiver by any of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure of any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder will thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a future waiver of any of such provisions, rights or privileges hereunder. This Agreement will only be assignable in connection with a valid assignment of the Agreement.
Acknowledged and agreed by the authorized representatives of the parties.
City of Anaheim Landis+Gyr Technology, Inc.
Signature Signature
Printed Name Printed Name
L,tn ~, .h( !lc.1w,
Title
Date Date '1 / l £1 J ;l. ~0
9 1.0 Definitions.
Software License Agreement
Exhibit A
Software Support and Maintenance Terms
"Audit Date" means the date that Customer surveys the system to determine the number of communication modules in use within the Software.
"Case" means a communication from Customer through the Case tracking mechanism of Landis+Gyr reporting a suspected Software Defect or other problems/questions Customer ·is. having with the production instance of the Software and identifying the appropriate severity level according to the Service Level Table below.
"Customer Support" means a range of services provided by Landis+Gyr to address questions and issues associated with Landis+Gyr Software and products. Services include troubleshooting, best practices, correct usage of the Software and products, assistance recreating issues, addressing product defects and accepting all product enhancement requests.
"Diagnose" means to determine the root cause of an issue, including making a determination whether or not the root cause is a Software Defect in the Software. "Firmware" means software embedded in the network equipment, endpoints and/or hardware that Customer has purchased either directly from Landis+Gyr or from an authorized agent. "Maintenance Release " means any update, upgrade, release or other adaptation or modification of the Software, including any updated Documentation, that Landis+Gyr may provide to Customer from time to time during the term, which may contain, among other things, error corrections, enhancements , improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software, but does not include any New Version.
"Major Release" means updated release of Software to support major enhancements and addition of new functionality/modules, typically where the number to the right of the first decimal has been changed.
"New Version" means any new functional module of the Software that Landis+Gyr may from time to time introduce and market as a distinct licensed product, and which Landis+Gyr may make available to Customer at an additional cost via an amendment to this Agreement. "Patch" means a change to the Software or its supporting data released to update, fix, improve, or to address a critical failure or Software Defect.
"Respond" means to take the following steps: (i) acknowledge to Customer that a Case has been received, (ii) open a ticket for the Case in Landis+Gyr's Case Management System and enter the relevant data, and (iii) request any additional infonnation not included in the initial Case that is necessary for Landis+Gyr to reproduce the cause of the Case and begin to Diagnose it. "Service Exception" has the meaning set forth in Section 9. 10 "Service Levels" means the defined Software Defect severity levels and corresponding required service level responses and response times referred to in the Service Level Table. "Service Level Table" means the table ·set out in Section 5. "Software Defect" means a reproducible failure of the Software to perform in substantial conformity with the specifications set forth in the Documentation. "Supported Release" means the most recent Major Release of the Software and two preceding Major Releases, including Maintenance Releases and Patches issued since the time that preceding Major Releases became generally available; provided, that each Major Release will remain as a Supported Release for at least twenty-four (24) months after it is made Generally Available by Landis+Gyr.
2.0 Term; Termination. This Agreement will commence on the Effective Date and continue for a period of one (1) year (the "Initial Term").
2.1 Renewal. Upon expiration of the Initial Term, thi~ Agreement shall automatically renew for successive one (1) year periods (each a "Renewal Term" and together with the Initial Term, the "Term"), unless a party provides the other party with written notice of its intent not to renew this Agreement at least ninety (90) days prior to the expiration of the then current Term.
2.2 Fees During Renewal Terms. Landis+Gyr's Fees are fixed during the Initial Term. Fees for Renewal Terms shall increase annually as of each anniversary of the renewal period by the Percentage of the Consumer Price Index (CPI-U) published for the end of Past Calendar Year.
Consumer Price Index here is defined as-All Urban Consumers of the Bureau of Labor Statistics of the U.S. Department of Labor for U.S. for All Items with Base Years 1982-1984=100.
2.3 Termination. Either party may terminate this Agreement for cause upon thirty (30) days written notice for a default of material obligations by the other party not cured within such thirty (30) day period.
2.4 Effect of Termination. Upon termination for any reason, or at any other time that Customer or · Landis+Gyr demands, the other party shall promptly deliver and/or certify destruction of Confidential Information, as appropriate, to the requesting party all Confidential Information (copies and originals) of the requesting party as may be in the other party's possession or under its control.
2,j If Customer has elected to terminate Maintenance Services and subsequently desires to reinstate them, Customer may do so on the conditions that it: (i) pays to Landis+Gyr all Maintenance Services fees that would have become due in the interim and (ii) ensures that its Software is brought to a currently Supported Release at Customer's separate cost. The Maintenance Commencement Date for the reinstated one-year Maintenance Term will be the date on which those conditions are met, which date the parties will confirm in writing.
3.0 Support and Maintenance Services. Subject to the terms and conditions of this Agreement and the Software license terms and conditioned on Customer's compliance therewith, during the Term, Landis+Gyr will provide to Customer, Landis+Gyr's standard Customer Support services in connection with the identification, Diagnosis, and correction of errors, the provision of: (a) telephone/e-mail/chat assistance via the Customer Support; (b) remote services via the Customer Support using screen share tools; and (c) access to technical information on Landis+Gyr's website 11 4.0
4.1 4.2
4.3 5.0
5.1 for proper use of the Software (collectively, the "Support Services"). "Maintenance Services" will consist of Landis+Gyr providing all new releases and versions of the Software that are made commercially available by Landis+Gyr, collectively with the Support Services, the "Support and Maintenance Services".
Customer Support and Access.
Case (or Support Request ) and Customer Obligations.
(1) Customer may request support services by way of a Case request. Customer along with Landis+Gyr shall classify Customer's requests for corrections in accordance with the severity levels classifications and definitions of the Service Level Table set forth below ("Support Request"). Customer shall submit each Case by e-mail, telephone or portal or such other means. Customer shall include in each support Case a description of the reported issue/question.
(2) Customer Obligations. Customer will, by and through its employees or consultants provide Landis+Gyr with:
1. prompt notice of any Software Defects; and
2. each of the following to the extent reasonably necessary to assist Landis+Gyr to reproduce operating conditions similar to those present when Customer detected the relevant issue and to respond to the relevant Case:
a. access to the Customer systems and the Customer's files and personnel; b. output and other data documents and information, each of which is deemed Customer's Confidential Information; and
c. such other reasonable cooperation and assistance as Landis+Gyr may request.
Customer Support Hours. Landis+Gyr shall provide Customer with access to Customer Support.
Landis+Gyr's current Customer Support business hours are 8:00 AM to 5:00 PM Eastern Time , Monday through Friday, excluding Landis+Gyr observed holidays (available upon request) and weekends ("Support Hours"). In addition, emergency access to on-call personnel via Landis+Gyr's Emergency Dispatch Service will be provided by Landis +Gyr from 6:01 PM through 6:59 AM, and 24 hours per day on weekends and holidays. Landis+Gyr shall provide advanced troubleshooting, via telephone or e-mail or portal, as deemed necessary by qualified Landis+Gyr personnel, to resolve Customer issues.
Submission Method. Customer may contact Customer Support through:
(a) Telephone direct dial-in at 888.390.5733;
(b) E-mail at [email protected]
Service Levels. Landis+Gyr shall provide Customer with Support Services on the terms and conditions set forth herein.
Support Service Responsibilities. Landis+Gyr will:
12 5.2
(a) respond to Support Cases in accordance with the Service Level targets; (b) provide telephone or email or portal support as set forth below. ( c) Provide online access to technical support bulletins and other user support infonnation and forums, to the full extent Landis+Gyr makes such resources available to its other customers.
Target Response Levels. Landis+Gyr shall respond to all Support Cases within the following targeted Response times based on designation of the severity of the associated Case:
Service Level Table
- · Initial T,rget · Subsequent · · ' ... . " . ,·
Severity iev~i' of . !)ef'mitioo" ·. Res~onse. Time T.arg~t Resp<>nse Case ' . · lime -·
" .. -
A Severity 1 (Critical) issue indicates the
production system is completely shut down
or system operations or mission-critical
applications are down. A Severity 1 issue
also includes an application that is in final
testing, facing a critical Production Use go-
live time frame.
Landis+Gyr promptly initiates the following
Severity 1 (Critical) procedures:
l Hour 2 Hours
• Assigns specialist(s) to correct the issue
on an expedited basis.
• Provides ongoing communication on
the status.
• Immediately begins to provide a
temporary workaround or fix.
The assumption is that customer resources
are available during the contractual service
hours, as necessary, to collaborate on a
workaround or fix.
A Severity 2 (High) issue indicates the
production system is functioning but severely
impacted with limited capabilities, or is
unstable with major periodic interruptions, or
mission critical applications, while not being
Severity 2 (High) affected, have experienced material system interruptions. A Severity 2 issue may also 4 Hours 1 Business Day indicate there is a time sensitive question impacting perfonnance. Landis+Gyr assigns
a specialist, and provides additional,
escalated procedures as detennined necessary
by Landis+Gyr support services staff.
Landis+Gyr exercises commercially
reasonable efforts to provide a workaround
13 6.0
6.1 6.2
6.3 6.4
or include a fix for the Severity 2 issue in the
next maintenance release.
A Severity 3 (Medium) issue indicates the
production system is still functioning but
capabilities are moderately impacted, or the
system is unstable with minor periodic
Severity 3 (medium) interruptions or a minor loss of product 1 Business Day 3 Business Days functionality. There is a medium-to-low impact on the business, but the business
continues to function, including by using a
procedural workaround.
A Severity 4 (Low) issue is a general usage
question, request for information, reporting
of a documentation error, or recommendation
Severity 4 (Low) for a future product enhancement or 2 Business Days 5 Business Days modification. There is low-to-no impact on the business or the performance or
functionality of the system.
In order for Landis+Gyr to meet Target Response Times outlined above, customers should make contact via telephone to report Critical or High issues. Any resolution of such Cases may take the form of a written response, supplementary documentation, work-around, coding change, product patch, or other correctional aids, which Landis+Gyr will provide to Customer.
Support Escalation Policy.
For each and every support issue presented to Landis+Gyr, the Customer Support teams work to respond as per the targeted initial and subsequent target response times. Occasionally, an issue requires a faster response, more attention, and a deeper understanding of the impact on your business.
When Severity Level cases classified as Critical are received, all Landis+Gyr support teams, including Support Managers, Escalations Manager, and Executive Leadership are immediately notified. The critical issue is triaged immediately. And then, the escalations leader and/or case owner contacts the customer and/or opens a phone bridge to begin efforts to address the issue. Both Landis+Gyr and Customer will work in good faith to address the issue. The critical issue is worked until a work-around or resolution is provided, or customer agrees the case severity is no longer critical and can be changed to other than severity one.
Regardless of the case severity, if a Customer believes that they are not receiving the proper response, the Customer may escalate the concern to Landis+Gyr. A customer may escalate the issue by notifying the concern to their Account Executive or Customer Account Representative or ask the case owner to escalate their case to a regional Support Manager.
For any critical or escalated issue, the regional Support Manager becomes involved and is responsible for ensuring the shortest possible resolution time through engaging the appropriate people and communicating the agreed action plans to the stakeholders from any of the personnel 14 7.0
7.1 7.2
7.3 7.4
7.5 7.6
7.7 8.0
involved . They proactively engage the senior executives, as appropriate, to improve customer relationships and demonstrate Landis+Gyr's commitment to the customer at the highest levels.
Releases.
During the warranty period and the period for which Maintenance has been purchased by Customer and as part of Maintenance, Landis+Gyr will provide to Customer all Major Releases, Maintenance Releases, and all critical Patches of the licensed Software as available (collectively, the "Releases").
All Releases shall be included in the definition of Software under the separate license agreement.
Such obligation is limited to Releases which Landis+Gyr generally releases to all its customers during such time period.
Customer is responsib le for installation and integration of any Release, excluding a Release relating to Infringement (which Release shall be the sole responsibility ofLandis+Gyr). If the parties agree upon terms for Landis+Gyr to provide services in connection with the installation or further integration of a Release, that understanding will be documented under a separate consulting services agreement.
Landis+Gyr will not be obligated or provide Maintenance if Customer has not installed a Supported Release.
For avoidance of doubt, Software upgrades do not include new modules supporting additional functions.
Landis+Gyr will test Releases applying its Commercially Reasonable Efforts before certifying them as generally available.
Custom code developed by Landis+Gyr for the Customer, to the extent applicable, may be agreed upon under a mutually agreed statement of work for additional fees. Support for such customized code would be described in such statement of work.
Customer Responsibilities. Customer shall comply in all material respects (to the extent applicable to the particular Software) with the following responsibilities of Customer:
(a) Ensure that the physical system environment, e.g., hardware requirements and configurations, temperature, humidity, physical security, is within Landis+Gyr ' s recommended parameters as specified in the Landis+Gyr recommended environments Documentation which is provided to Customer prior to implementation. (b) Check system operational log.s for errors and verify that non-AMI network events are excluded.
( c) Check file system for any corruption.
( d) Monitor disk space.
(e) Back up the Landis+Gyr application software and configure files on a regular basis (weekly and monthly).
(t) As applicable, maintain system users' password control and network security at all levels. 15 (g) Investigate faults relating to the interconnection between the Software and thrw hardware of the host system.
(h) Generate and monitor system statistics as recommended in writing by Landis+Gyr during the project kick off meeting.
0) Reasonably cooperate with and assist in Landis+Gyr's verification of Software Defects. (k) Provide to Landis+Gyr all reasonable access to the location· of the Software and the host system hardware, including access to all relevant utilities, data communications sources, and data. Access can be in the fonn of secure VPN, web conferencing, remote access, or other secure access methodology as agreed by the parties in writing . . (I) When reporting a Case, Customer will: (A) ensure that the use of the Software is in accordance with its Documentation; (B) use commercially reasonable efforts to eliminate any third party hardware, any operating system software, and any third party application software deficiencies; (C) capture all relevant data, reasonably document the relevant operating conditions and other operating information, and supply Landis+Gyr with reasonably requested diagnostic information in English; and (D) implement mutually agreed upon remedial, corrective or work-around procedure(s) and reasonably describe any limitations imposed by such corrections or workarounds that are known to Customer. (m) Once Customer completes its testing and validation procedures, Customer will promptly install all Software provided by Landis+Gyr from time to time pursuant to this Agreement within a reason.able time after receipt thereof provided that such Software is at no additional cost to Customer. Customer will use reasonable efforts to notify Landis+Gyr of any such installation of Software within a reasonable period of time after installation. (n) Customer shall endeavor to notify Landis+Gyr of verified resolution or otherwise take action within 10 Business Days of a shipment from Landis+Gyr with respect to a Case.
9.0 Exclusions from Coverage.
9 .1 Matters Which Cause an Exclusion of Coverage. Case resolution under this Agreement does not include and will not be provided with respect to any Case which is in part or whole caused by or the result of any of the following (each a "Service Exception"):
( a) Any modification of the Software performed by any party other than (i) Landis+Gyr or (ii) a third party approved in writing by Landis+Gyr in advance which performs such modifications in accordance with the Documentation.
(b) Any use of the Software not in compliance with their Documentation. (c) Any hardware, peripheral products, or software not provided by Landis+Gyr or the interoperability of those products with the Software other than those contemplated under the Agreement or the Documentation.
( d) Any defects, errors, deficiencies, or non-compliance in any hardware or any other software used in connection with the Software, but not supplied by Landis+Gyr. 16 ( e) Any other event not caused by Landis+Gyr.
9.2 Matters Excluded from Covera ge. Support and Maintenance Services are only provided as specified in this Agreement. Any additional services are not included in Support and Maintenance Services and will require other agreements between the parties. The following services are not included in Support and Maintenance Services:
(a) Design and configuration of the Software.
(b) System administration work that should be completed by Customer's system administrator, as addressed in the applicable SOW or project kick off meeting. ( c) On-Site support.
( d) Server hardware repairs and replacements.
(d) Advanced Signaling Certification and Maintenance . Certification (ANSI/ITU compliance) and maintenance for SS7, ISDN, arid future advanced signaling protocols.
9.3 Reproducible Matters. Customer will promptly notify Landis+Gyr of a Software Defect. The parties acknowledge that maintenance under Agreement (and any warranty services in this Agreement with respect to the Software) may be difficult to provide unless a Software Defect or alleged Software Defect is reproducible or verifiable by Landis+Gyr.
10.0 Additional Services. If Customer submits a Case and the cause of the problem is not a Software Defect or not otherwise caused by Landis+Gyr, but results from some other cause (including without limitation, from Customer's IP network or back-haul facilities), then such services of Landis+Gyr will constitute Additional Services and Landis+Gyr may charge, and reimbursements of expenses for Landis+Gyr's services in connection with such Case at Landis+Gyr's time and materials services price list rates as agreed upon in a mutually acceptab le SOW
11.0 Limitation of Liability
11.1 No Consequential or Indirect Damages. INNO EVENT SHALL EITHER PARTY OR ANY OF
ITS REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO THE OTHER
PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENT AL,
SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES), INCLUDING WITHOUT LIMITATION, LOSS OF
BUSINESS, REVENUE OR PROFIT, ARISING OUT OF, RELATING TO, OR IN
CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION
UPON WHICH A CLAIM FOR DAMAGES MAY BE BASED, WHETHER IN CONTRACT,
TORT, STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY. THESE LIMITATIONS WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
11.2 Maximum Liabili ty. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF
OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO LANDIS+GYR PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE· FOREGOING LIMITATIONS SHALL APPLY EVEN IF 17 THE NON-BREACHING PARTY'S REI\.1EDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
11.3 Exce ptions. THE LIMIT A TIO NS AND EXCLUSIONS SET FORTH IN THIS SECTION 12 SHALL NOT APPLY TO DAMAGES OR LIABILITIES ARISING FROM: PERSONAL
INJURY OR DEA TH OR DAMAGE TO ANY REAL OR TANGIBLE PERSONAL PROPERTY
CAUSED EITHER PARTY'S NEGLIGENT ACTS OR OMISSIONS, OR WILLFUL MISCONDUCT.
12.0 General
12.1 Complete Agreement, Modification and Assignment. The parties agree that,this Agreement and any ancillary agreements, exhibits or schedules constitutes the complete and exclusive agreement between them with respect to its subject matter and supersedes all previous understandings , negotiations, proposals, acknowledgements, and representations , whether oral or written with respect thereto. No modification of this Agreement will be effective unless it is in writing and signed by authorized representatives of Customer and Landis+Gyr. Customer may not assign this Agreement, or its rights or obligations under them without the express written consent of Landis+Gyr which shall not be unreasonably withheld. Any exhibit attached hereto is incorporated herein by this reference.
12.2 Notices. Notices, other than routine communications having no legal effect, shall be in writing and shall be sent by certified United States mail (return receipt requested), by guaranteed overnight delivery, by courier, or by confirmed facsimile addressed to the addresses set forth below:
For Customer: City of Anaheim
Anaheim Public Utilities
201 S. Anaheim Blvd, Suite 701
Anaheim, CA 92805
Attention: John Pellegrino
Telephone: (714) 765-4186
City of Anaheim
200 S. Anaheim Blvd, Suite 217
Anaheim CA 92805
Attn: City Clerk
Facsimile Number: (714) 765-4105
For Landis+Gyr: Landis+Gyr Technology, Inc.
30000 Mill Creek A venue, Suite 100
Alpharetta, GA 30022
Attn: Legal Department
Facsimile No: 678.258 .1686
12.3 Force Majeure. Except for payment obligations, neither party is liable for failing to fulfill its obligations due to acts of God, civil or military authority, war, riots, strikes, fire, or other causes beyond its reasonable control. To the extent a party is substantially delayed by force majeure from performing its obligations hereunder, such party shall give notice and details of the force majeure to the other party as soon as practicable, then the parties may extend the time for perfonnance by written agreement. In the event it shall become impossible for Landis+Gyr or Customer to perfonn its respective obligations because of force majeure, then in such event the party so unable to perform may terminate this Agreement upon written notice to the other. In no event shall an event 18 of force majeure excuse or delay the payment of any amount owed by one party to the other party under this Agreement.
12.4 No Third Partv Beneficiaries. There are no third-party beneficiaries to this Agreement, and no party other than Landis+Gyr and Customer shall have any legally enforceable rights under this Agreement.
12.5 Headin gs. All headings used in this Agreement are for reference purposes only and are not part of this Agreement.
12.6 Waiver: Severabili ty. No delay or omission by Customer or Landis+Gyr in enforcing its rights or remedies under this Agreement shall impair such right or remedy or be deemed to be a waiver thereof. Any waiver, in whole or in part of any provision of this Agreement will not affect be considered to be a waiver of any other provision. No waiver of this Agreement shall be valid unless in writing and signed by the parties thereto. If any term of this Agreement is found to be unenforceable or invalid for any reason, such tenn shall not affect the other provisions, but such unenforceable term shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permitted the intent of Customer and Landis+Gyr set forth in this Agreement, and all other terms will remain in. full force arid effect.
12.7 Inde pendent Contractor. Nothing in this Agreement shall be read as appointing either party as the agent or legal representative of the other party for any purpose whatsoever, nor shall either party hold itself out as such. This Agreement does not create or is intended to create any express or implied relationship of joint ventures , partners, employer and employee, associates, or principal and agent between the parties, and both parties are acting as independent contractors and principals for their own accounts. Neither party is granted any right or responsibility for or on behalf of the other or otherwise to bind the other. In providing the Maintenance, Landis+Gyr shall have sole responsibility for all persons employed by it in connection with the performance of such Maintenance and, except as provided in this Agreement, Landis+Gyr shall solely determine the methods, details, and means of performing the Services.
12.8 No Personall v Identifiable Information. Landis+Gyr software support specialists may request that Customer send Landis+Gyr the problem information, systems data or test cases, etc., or that Landis +Gyr support specialists be able to view it with Customer electronically. To accomplish this, Customer may be offered several options by the Landis+Gyr support specialist. CU&tomer agrees that it will not send or provide Landis+Gyr access to any personally -identifiable information ("PIT") , whether in data or any other form. Customer agrees to be fully responsible for reasonable costs and other amounts that Landis+Gyr may incur relating to any such inf onnation mistakenly provided to Landis+Gyr or the loss or disclosure of such information by Landis+Gyr, including those arising out of any third-party claims. Should Customer mistaken ly provide PII to Land is+Gyr, Customer shall immediately notify Landis+Gyr in writing, and reasonably cooperate with Landis+Gyr to take any mitigating actions deemed necessary to remove such PII from the Landis +Gyr systems.
12.9 Governin g Law. This Agreement shall be deemed to be a contract made under the laws of the State of California and shall for all purposes be construed and enforced in accordance with California law without regard to its conflicts of laws principles.
12.10 EEOC and Affirmative Action.
Landis+Gyr is in compliance with all of the laws and Executive Orders prohibiting discrimination, including but not limited to Title VII of the Civil Rights Act of 1964 as 19 ..
race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
1.1 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the parties as of the Effective Date.
Ann IM. dS ua amtenance an uooort F ee:
I:)~Qciotion . . . .
"
Command Center Base License Fee
Command Center Software Maintenance and
Suooort (Uo to 250,000 Endooints)
EXHIBITB
FEES
F~ ._
$5,000.00 per year
$0.60/Endpoint per year
21 1.0
EXHIBITC
PREMIUM SUPPORT SERVICES AGREEMENT
Advanced Metering Infrastructure (AMI)
Definitions.
"Audit Date" means the date that Customer surveys the system to determine the number of communication modules in use within the Software.
"Case" means a communication from Customer through the Case tracking mechanism of Landis+Gyr reporting a suspected Software Defect or other problems/questions Customer is having with the production instance of the Software and identifying the appropriate severity level according to the Service Level Table below.
"Business Hours" means 8:00 AM-7:00 PM Eastern Time.
"Change Request" means as a request for additional services and/or equipment that needs to be priced and may require a change to this Agreement.
"AMI System" means the Advanced Metering Infrastructure hardware and Software provided by Landis+Gyr or its representative.
"Incident" means any event that is not part of the standard operation of the Service and which causes, or may be expected to cause, an interruption to the Service or a degradation of the Service.
"Incident Management" means the investigation and resolution of a problem that has caused ( or may be expected to cause) a major Incident or a number of smaller Incidents. "Incident Request" means requests for service due to an Incident. "Resolver Group" means one of a number of specialist teams, within Landis +Gyr or contracted to Landis+Gyr, which may be assigned work in order to resolve an incident or to investigate a problem.
"Customer Support Desk" means the single point of contact provided by Landis+Gyr for Customer to report Incidents and to make Service Requests. "Service Levels" means the standards of service detailed in Table A of this Agreement. "Service Requests " means Customer requests for additional services beyond Incident resolutions.
"Services" means support services for the Software to be provided by Landis+Gyr to Customer 22 2.0
2.1 2.2
3.0 3.1
as set forth in this Agreement.
"Software" means the computer application and programs, in object code, that Customer licenses from Landis+Gyr.
"User" defined as the staff of Customer or third parties working under the control of Customer making use of the Service.
Term; Termination. This Agreement will commence on the Effective Date and continue for a period of one (1) year (the "Initial Term").
Renewal. Upon .expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (each a "Renewal Term" and together with the Initial Term, the "Term"), unless a party provides the other party with written notice of its intent not to renew this Agreement at least ninety (90) days prior to the expiration of the then current Term.
Either party may terminate this Agreement upon sixty (60) days prior written notice to the other party for failure of such party to fulfill any of its material obligations hereunder. In the event that the breaching party corrects the breach within the sixty (60) day period, this Agreement shall continue in full force and effect as it would have had such breach not occurred. Failure to perform due to a force majeure shalJ not be considered a substantial or material default under this Agreement.
Premium Support.
Customer is obtaining support for Software provided by Landis+Gyr for the fees set forth on Exhibit A (Pricing; Payment Terms) attached hereto. Therefore, only Software obtained directly from Landis+Gyr is covered under the terms of this Agreement. Further, Landis+Gyr is under no obligation to support Software that has been modified without Landis+Gyr' s consent or authorization. Should Landis+Gyr decide to provide support for Software modified without the consent or authorization ofLandis+Gyr, said support would require an additional support fee.
3.1.1 Resources. If Customer is unable to establish a positive working relationship with a member of the Landis+Gyr staff providing Premium Support Services after good faith efforts to do so, Customer may request that Landis+Gyr replace that staff member.
Landis+Gyr agrees not to unreasonably withhold consent to making such a replacement.
3.1.2 Designated Technical Resource. Landis+Gyr will provide a Designated Technical Resource as the single point of contact during Business Hours for technical related support issues. In the case where an Issue occurs outside of Business Hours, Customer should follow the Landis+Gyr 24x7 Customer Support Desk process which is defined in Section (c.) below.
The Designated Technical Resource will be assigned upon a mutually executed agreement.
23 D Serve at the Designated Point of Contact - onsite, remote, hybrid as specified within agreement
D Provide tracking of and routine updates on AMI cases
D Perform initial risk assessment of the solution when issues are identified with adjacent systems
D Perform initial troubleshooting with in-depth solution knowledge D Assist with configuration management and necessary adjustments for refined business processes, new product releases, etc.
D Coordinate and manage escalated issues with internal Landis+Gyr teams D Perform data gathering and reporting for System performance and issues, including:
D Gathering System performance data, and
D Providing monthly System performance reports to Customer D Record and track the current status of pending Change Requests 0 Conduct routine operational review meetings with customer D Support future planning of AMI enhancements
The escalation process for Incidents not resolved in the timeframe outlined in this Agreement is defined in Section 2 (g.) below.
3.1.3 Customer Support Desk. In the event it is after hours or the designated technical resources is unavailable, Landis+Gyr will provide a 24x7 Designated Customer Support Desk that will act as the point of contact for Customer Users to report Incidents and make Service Requests. It will be the owner of Incidents until successfully closed.
The designated telephone number for the Customer Support Desk is 1-888-390-5733.
The Customer Support Desk will be responsible for ensuring that all Incidents are recorded and managed to successful closure and will provide resources to deal with User enquiries and to handle Customer requests for change. The Customer Support Desk will monitor the timely handling of the Incident by each assigned Resolver Group initiating escalation actions as required. Telephone calls will be routed to key support team members assigned specifically to the Customer account. In addition, Landis+Gyr will assign specific technical support individuals to Customer and provide priority field visits as necessary.
3.1.4 Incident Management. Landis+Gyr will provide formal Information Technology Infrastructure Library (ITIL) compliant Incident Management. 24 Incident Management is triggered by a User reporting the Incident to the Customer Support Desk.
The Customer Support Desk will perfonn the following actions for reported Incidents:
D Log and categorize reported Incidents.
D Track the Incident through to resolution.
D Provide status updates to Users.
D Engage appropriate Incident resolution resources.
D Escalate to appropriate Resolver Groups and levels of support.
D Dispatch a Resolver Group where applicable.
D Identify known errors and repetitive Incidents, providing a work-around where applicable.
D Verify closure with the User[ s] and where applicable obtain Customer concurrence for Incident closure.
D Respond to User queries regarding Incidents.
D Initiate escalation procedures for critical situations.
D Close the Incident Request record and document the Incident resolution.
3.1.5 Incident classification and notification. When an Incident is reported to the Customer Support Desk, it is recorded in a problem tracking system, regardless of whether the Incident is resolved immediately or requires further action. Landis+Gyr generates a number for the case, and as part of the problem reporting process, the Customer Support Desk analyst and the User will agree on an assigned severity level, indicating its impact on Customer work. The goal of prioritization and escalation is to assure delivery of .prompt service as agreed upon and to offer a mechanism to accelerate support for high-priority issues and to provide a map of escalation, if required.
In support of the services outlined in this Agreement, Landis+Gyr will respond to service-related Incidents and/or requested submitted by Customer within the following timeframes to ensure optimal Service Level provision to Customer. (See Table A - Service Levels).
3 .1.6 Incident Resolution. Landis+Gyr shall perform the following activities when required to resolve Incidents:
Investigate and diagnose the cause of Incidents.
D Take appropriate actions to resolve Incidents.
25 D Ensure that other related activities are reported and recorded by the Customer Support Desk.
0 Generate periodic reports on responses to Service Levels, shown in Table A, for Customer, upon request.
Upon notification of an Incident by a User to the Customer Support Desk, remote management tools may be used to assist in analyzing and resolving the Incident during the term of this Agreement.
Customer agrees to provide Landis+Gyr with access to Customer network system to install and use remote access software ("Remote Access Software"), or VPN access if not already in place between Landis+Gyr and Customer. The Remote Access Software contains technological measures designed to collect and transmit to Landis+Gyr certain diagnostic, technical, usage and related information, including information about Customer ·computers, systems, network and any third-party products, relating to or derived from Customer use of the Software. Customer acknowledges and agrees that Landis+Gyr and its authorized representatives may collect, maintain, process and use this information in the course of performing the services under this Agreement.
3.1.7 Customer Escalation Contact Information and Flows. Should an Incident not be resolved in accordance with the Service Level Agreement set forth in Table A below, the Customer Support Desk shall provide regular on-going status updates to Customer in accordance with agreed upon procedures.
The Customer Support Desk may trigger escalation procedures when an Incident resolution time is in danger of exceeding the Service Level Agreement threshold defined in this Agreement.
The objectives of the escalation procedures are to ensure that:
D The fault is rectified as quickly as possible.
D All measures are taken to minimize any disruption to Customer operations.
D If a fault cannot be rectified within pre-determined periods, affected Users will be notified of the Incident and the progress of its resolution.
D Appropriate and progressively more senior, Landis+Gyr staff members are made aware of the fault and the actions being taken for resolution.
D Appropriate resources are allocated as necessary to assist the resolution effort.
At each level of escalation, Landis+Gyr and Customer will work in good faith to resolve the issue. If after a reasonable time, considering the severity of the issue, Customer is not reasonably satisfied with the current Landis+Gyr response, Customer may ask for the case to be escalated to the Landis+Gyr support management and executive teams.
26 3.L8 Customer Relationship Management (CRM). A customized dashboard will be provided through a web portal which will contain information pertinent to account management such as:
D Incident tracking to include the ability to enter Incidents directly to Landis+Gyr D Service Level Agreement tracking; customized perfonnance reporting via web portal on a monthly basis
D Option of integration through an API interface
3.1.9 Customer Responsibilities. Customer shall ensure that all Customer users and authorized representatives adhere to the Customer responsibilities defined in this Agreement. Failure to do so will mean that Landis+Gyr cannot be held to the terms of this Agreement that are directly affected by such failure on the part of Customer or their Users.
Customer responsibilities and/or requirements in support of this Agreement include (at Customer cost):
D Provide or acquire all necessary levels of appropriate training to users should Landis+Gyr determine that lack of training is a contributing factor to the occurrence of system support Incidents.
0 Report Incidents to Landis+Gyr as soon as they occur with full details, where known.
0 Submit Change Requests to Landis+Gyr, with a dear defjnition of requirements.
D Assign appropriate priority to Incidents and/or Service Requests D Notify Landis+Gyr prior to any scheduled downtime on any direct or ancillary systems that could impact services provide by the Landis+Gyr AMI System. 3 .1.10 Exclusions. The following are excluded from this Agreement:
D Any hardware, software and network owned, maintained, operated, managed or procured by Customer ( or its third-party supplier, or an agent of Customer) unless the Agreement explicitly provides that they are covered herein.
D The introduction of viruses to the Customer network beyond the reasonable control of Landis+Gyr.
D Unless Landis+Gyr is contracted by Customer under a separate Statement of Work, Customer is responsible for loading and maintaining all current Software, backing up Software, applications and data for disaster recovery purposes, as well as Software administration.
27 0 Customer is responsible for all third-party products and services, whether or not Landis+Gyr recommended them or assisted in their evaluation or selection (i.e.
Microsoft SQL server) unless provided and supported by Landis+Gyr. 0 Customer is responsible for installing Software upgrades unless this Agreement explicitly provides that they are covered.
D Supply or field installations, replacement, maintenance of AMJ System hardware necessary to support the AMI System performance outside of the scope of this Agreement . .
0 Circumstances outside ofLandis+Gyr's reasonable control.
3.1.11 Customer /Landis+Gyr Contact Information. Landis+Gyr and Customer will provide each other with all of the required contact information for all personnel necessary to perform the obligations under this Agreement.
3.1.12 Responsibilities of Landis+Gyr. Landis+Gyr's responsibilities during the delivery term of this Agreement:
0 Meet the established Service Levels contained in this Agreement.
D Perform data gathering and reporting, including:
0 Gathering performance data relating to all Service Levels. 0 Providing monthly performance reports to Customer.
D Keep records on the current status of outstanding Change Requests. 28 Table A Service Levels
Priority Description Expected Expected Restoration Expected Resolution Response Time Time Time
Critical Such an event impacts multiple Users and halts or • 1 hour during Restoration action Resolution within Event severely impacts the division's ability to conduct Business within 48 hours. 30 days or a critical operations. Postponement of any critical Hours Landis+Gyr shall resolution plan if the interface file that can delay field services, billing • 2 hours non- provide error resolution time will and daily critical activities. Critical tickets may Business correction or work- be longer with include the following: Hours around as soon as weekly updates to • Daily billing read is pursuant per customer available and shall User contract provide a daily
• Issue is causing a Public Utility Commission or conference call regulatory investigation/event update with an
• Operational cost impact is greater than $10,000 associated written progress report.
High Event Impacts individual or small work group. Normal • 1 hour during Restoration action Resolution within operations may be degraded but can continue. Business within 72 hours. 60 days ora Issue is causing operational impact to customers of Hours Landis+Gyr shall resolution plan the less than $10,000. • 2 hours non- provide error resolution time will Intermittent BackhauVinfrastructure issues not Business correction or work- be longer with resulting in penalties. Hours around as soon as weekly updates to Data integrity issue for any subset of meters less available and shall User than the contractual commitment. provide a daily
Access to customer-facing tools. conference call
AMI meter data unavailable through customer - update with an facing tools. associated written
progress reoort.
Medium Impacts individual or small work group. Normal • 24 hours Restoration action Through Event operations may be degraded but can continue and during within reasonable Landis+Gyr' s service response may be delayed until a mutually Business time period for normal minor established future time. No immediate remedial Hours operational issues. release process action is expected. • 2 business For each features
Tickets may include: days if during request resulting in a • Informational and analytical queries non-Business minor release process • Non-emergency bug fixes Hours the timing will be
• Non-functioning module in software, other than agreed upon. billing extracts
•Multiple failures would cause this to be escalated
as a "Critical Event"
•Collector communication failures
•Minor billing extract issues
Low Event Non-Business impact - maintenance request, data • 48 hours Restoration action Resolution through requests, and non-critical process enhancements. during within reasonable Landis+Gyr' s •Infonnation and analytical queries Business time period for normal minor •Systems enhancement request (QA) Hours operational issues. release process •Cosmetic in nature • 2 business For each features
• Report problems days non- request resulting in a
•General inquiries Business minor release process
• Instruction Hours the timing will be
•Minor bug agreed upon.
• Login Issues
• Meter not reporting after troubleshooting
29 EXHIBITD
PREMIUM SUPPORT SERVICES Pricing
Advanced Metering Infrastructure (AMI)
Premium Support Services Fee:
PRE~SUPPORTSERVICESFEE
Description
Premium Suooort Services
30 Annual Fee
$90,000.00
LANDIS+GYR TECHNOLOGY, INC.
FORMERLY CELLNET
30000 MILL CREEK AVENUE,
SUITE 100
ALPHARETTA, GA 30022
Master Agreement Purchase Order
200 S. Anaheim Blvd.
Purchasing , Suite 620
Anaheim , CA 92805-3820
Phone: 714-765-5110
Fax: 714-765-5288
MA #: 106-494172
Revision #: 1
Attachments: 2
Council Award: 4672 9/15/20 #9
Vendor ID Code #: VC0000100133
Master Agreement : 106-494172
Begin Date: 09/01/20
Expiration Date: 08/31/21
Supercedes MA: -
Renewal options: Yes
Total purchase Not to Exceed: $245,000.00
Payment terms: NET 30 DAYS Contact Name: CHARLIE MATHYS Phone: 720-570-6779
Email: [email protected]
FOB: NIA-Software via Internet transmission
Authorized Departments :
PUBLIC UTILITIES
This agreement documents the general terms, conditions and pricing of the City's purchases of the goods and/or services described below. This Master Agreement does not authorize specific quantities or shipping dates; authorization to ship goods or deliver services will be made by issuing Delivery Order referencing this document. Shipping location , delivery date, items, quantities and prices will be confirmed on the Delivery Orders. All invoices must clearly indicate the relevant , authorizing Deliver Order# they pertain to.
COMMODITIES AND SERVICES COVERED BY THIS MASTER AGREEMENT:
Software License and Support Service (Landis+Gyr)
Special notes:
Software license and support and maintenance services for Utility Meter Reading.
Per The Attached Software License and Support & Maintenance Services Agreement.
Renewal will be automatic unless terminated by either party.
POP
9/1/20 - 8/31/21
Line# cc Description
1 92045 LANDIS + GYR COMMAND CENTER BASE LICENSE FEE
2 92045 LANDIS + GYR COMMAND CENTER SOFTWARE MAINTENANCE AND SUPPORT (UP TO 250K ENDPOINTS)
3 92045 LANDIS + GYR PREMIUM SUPPORT SERVICES
CONTINUED ON NEXT PAGE
INSTRUCTIONS TO VENDORS
This Purchase Order subject to and governed by all Terms and Conditions printed at the end of this order.
Buyer's Signature:
Angelo Heidt
[email protected]
Qty U ofM Unit Price
0.00 YEAR $5,000.0000
0.00 UNIT $0.6000
0.00 YEAR $90,000 .0000
(714) 765-5207
Master Agreement Purchase Order
I Special notes:
200 S. Anaheim Blvd.
Purchasing , Suite 620
Anaheim , CA 92805-3820
Phone: 714-765-5110
Fax: 714-765-5288
MA #: 106-494172
Revision #: 1
Attachments : 2
Council Award : 4672 9/15/20 #9
Buyer's Signature :
CONTINUED ON NEXT PAGE
INSTRUCTIONS TO VENDORS
This Purchase Order subject to and governed by all Terms and Conditions printed at the end of this order. Angelo Heidt [email protected]
(714) 765-5207
Master Agreement Purchase Order Page3
200 S. Anaheim Blvd.
Purchasing , Suite 620
Anaheim , CA 92805-3820
Phone: 714-765-5110
Fax: 714-765-5288
MA #: 106-494172
Revision #: 1
Attachments: 2
Council Award: 4672 9/15/20 #9
STANDARD TERMS & CONDITIONS
1. TERM S OF ORDER : This order is limited to the terms herein unless expressly agreed in writing by the City's Purchasi ng Division.
2. ACCEPTANCE : Seller's shipment of goods, commencement of any work, or performance of any seNices hereunder shall constitute acceptance by Seller of this order and all of its terms and conditions.
No additional terms or conditions stated by Seller in acknowledging or otherwise accepting this order shall be binding upon the City unless specifically accepted in writing by Buyer. No oral agreements shall be binding unless confirmed by a written revision to this purchase order.
3. SELL OR ASSIGN: The supplier shall not sell, assign , or transfer any obligations resulting from this order without the specific written consent of the City's Purchasing Division.
4. MATERIAL SAFET Y DATA SHEETS : Supplier shall submit Material Safety Data Sheets with all orders of hazardous substances.
5. COMPLIANCE WITH LAWS : All goods and seNices provided shall comply with all current federal, state, and local laws relative thereto . Supplier further agrees to indemnify , defend , and hold the City harmless for any failure to so conform.
6. TAXES : Unless otherwise indicated on the P.O., this order is subject to California Sales Tax, at the current Orange County tax rate. The City is exempt from Federal Excise Tax.
7. WARRANTY : Supplier fully warrants all materials and equipment, including without limitation, any optional equipment purchased by the City under the terms of this order, against poor and inferior quality and workmanship of equipment , labor and materia ls, for one year after the date of final acceptance by the City, unless otherwise stated herein.
8. LAWS GOVERNIN G CONTRACT : This order will be
administered and interpreted under the laws of the State of California .
9. BUSINE SS LICENSE: Firms providing goods or seNices to the City of Anaheim must have a current City business license.
10. AUTHORIZED DISTRIBUTOR : Vendor represents that vendor is an authorized distributor of the product ordered. The City reserves the right to cancel this order at any time if it is determined that the vendor is not an authorized distributor of the product ordered.
11. CANCELLATION : Time is of the essence in the performance of this Purchase Order. The City reserves the right to cancel any portion of this order with respect to goods not delivered , or services not performed , on or before the required delivery date.
12. REJECTION OF MATERIALS /SERVI CES: All materials and services furnished shall be as specified and are subject to inspect ion and approval by the City. The City reserves the right to reject any material or service which does not comply with the specifications and/or terms of this order.
13. F. 0 . B. POINT : All orders are to ship F. 0. B. Destination , unless otherwise specified in the P.O.
14. TITLE : Except as otherwise and expressly provided herein, title to and risk of loss on all items shipped by vendor or vendor's agent to the City shall pass to the City upon the City's inspect ion and acceptance of such items at the City's premises.
15. SHIPPING & HANDLING CHARGES : Shipping, handling ,
packing, transportation, and any other fees or charges are not allowed unless specified otherwise herein.
16. PACKING SLIPS: Packing slips specifying quantity, description and purchase order number must be included with each delivery.
17. INVOICES : The purchase order number and department name must appear on all invoices, shipping papers, packages, and correspondence. Unless otherwise specified , the invoice shall contain the following information ; purchase order number, item number, description of supplies or services , sizes, quantities, unit prices, extended totals, all applicable taxes, and freight and handling charges, where authorized.
18. PAYMENT : Payment will be made only upon receipt of all materials, services, and invoices which are as specified and in accordance with the terms of this order, unless otherwise stated herein.
19. HOLD HARMLESS AND INDEMNIFICATION : By acceptance of this purchase order, the vendor hereby agrees to indemnify , defend, and hold harmless the City (including its officers and employees) for/ from any and all claims or actions of any kind presented against the City arising out of vendor's (including vendor's employees, representat ives, products, and subcontractors) performance under this agreement , excepting only such claims, costs, or liability which may arise out of sole negligence of the City.
20. INSURANCE : Vendors who perform work on City property are required to provide acceptable proof of insurance prior to commencing work. Specific insurance requirements are contained within the body of the purchase order.
21. NEW MATERIALS : Unless a bid specification calls for used, refurbish ed or recycled materials, all items or materials bid and supplied to the City are to be new, unused products .
10/26/10