AGREEMENT
This Agreement (“Agreement”), dated for purposes of identification only this _____ day of __________, 2024, is made and entered into by and between the City of Anaheim, a municipal corporation (“Anaheim,” “Licensee,” or “Lessee”), and Doble Engineering Company, a Massachusetts corporation (“Provider,” “Licensor,” or “Doble”). Anaheim and Provider are sometimes individually referred to as “Party” and collectively as “Parties.”
RECITALS
A. Anaheim is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Anaheim Charter.
B. Anaheim desires to engage Provider to provide the following (collectively, “Project”): (1) leasing of power factor test set equipment, inclusive of the M4100 and all associated equipment (“Leased Equipment”), together with Doble Test Assistant (“DTA”) Software, associated engineering and technical support services, and other value-added services (together, “Lease”); (2) laboratory testing services of Anaheim’s submitted oil samples and other specimens (“Laboratory Services”); and (3) laboratory test result database management services (“Database Services”), inclusive of the cloud-based InsideView DGA Diagnostics Software (“InsideView”).
C. Provider possesses the equipment, products, skills, experience, ability, licenses, and certifications necessary to provide the Project services.
D. Anaheim has solicited and received a proposal from Provider and has evaluated Provider’s products, services, experience, and expertise, and Anaheim desires to retain Provider to render the Project services under the terms and conditions set forth in this Agreement.
TERMS AND CONDITIONS
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and conditions contained herein, the Parties agree as follows:
1. SERVICES TO BE PROVIDED
1.1 Provider shall provide to Anaheim all labor, materials, tools, equipment, products, services, systems, and incidental and customary work necessary for the Project (“Services”). The Services include (1) the Scope of Services attached hereto as Exhibit A, which is incorporated by reference, and (2) the following value-added services, which Provider agrees to provide to Anaheim upon request in connection with the Services detailed in Exhibit A (collectively, “Scope of Services”):
1.1.01 Unlimited 24/7 engineering support from Doble Principal Engineers on any equipment or services leased by Anaheim, oral reviews and reasonable written reviews (upon request) for reports on Anaheim’s test data, general consultation on Anaheim’s insulation problems, and application and data analysis support for any leased equipment; 19 July
2 1.1.02 Access to MyDoble, which contains decades of information, including Doble Conference papers, Committee Meeting minutes, tutorials, reference guides, maintenance and test procedures, manufacturer service advisories, and more;
1.1.03 Participation in Doble Client Committees, specific forums for discussing best practices, advancing apparatus engineering and diagnostics, and ensuring critical asset reliability;
1.1.04 Invitation to annual International Spring Conference of Doble Clients, the premier technical forum for electric power utilities around the world. This unique conference is open only to Doble Clients and has been held annually since 1934. In addition, Doble offers an invitation to the Fall Conference for Doble Clients to discuss typical ongoing issues with a utility and the planning meetings for the Spring Conference;
1.1.05 Customizable training by Doble Client Service Engineers, as mutually agreed and during normal business hours, to consult with and instruct Anaheim employees on insulation power-factor testing, which may be for a continuous period not exceeding four (4) consecutive, eight-hour days plus travel time once each Term Year. Travel costs are billed separately and must be approved of in advance as provided in Section 4.2.
1.1.06 Option to attend Doble Client Regional Seminars providing free supplemental training opportunities for Anaheim’s field test teams to learn best practices for safe and effective testing, including multiple case study sessions;
1.1.07 Access to Doble Webinars offering convenient online training in Doble test methods and diagnostics. Webinars are recorded and accessible 24/7 in MyDoble;
1.1.08 Access to DTAWeb to securely store your test results and benchmark against the industry’s only web-based data repository containing over 30 million test results collected over 70+ years;
1.1.09 Membership in Doble’s exclusive Doble Client Forum (formerly AskDoble® Email Discussion Forum) to connect with a large group of specialized engineers to share, discuss, and answer questions involving substation engineering and maintenance best practices;
1.1.10 Receipt of the Doble Annual Survey Report providing information and data to select insulation fluids for purchase, verify quality of oils being supplied in the field, and monitor the quality of oils supplied by your vendor. The survey includes one copy of the Doble Transformer Oil Purchase Specification (TOPS).
1.2 On behalf of Anaheim, the Public Utilities General Manager (“General Manager”) or designee is authorized to add, modify, or delete tasks from the Scope of Services.
2. TERM
The term of this Agreement shall commence on the Effective Date and continue through its fifth (5th) anniversary, unless earlier terminated per Section 27 (“Term”). Thereafter, the
3 Term shall automatically renew for five (5) successive annual periods on each anniversary of the Effective Date, for a total Term of ten (10) years, unless Anaheim gives thirty (30) days’ written notice of nonrenewal prior to expiration of the current Term. Each initial and successive annual period is referred to as “Term Year.”
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of this Agreement, and Provider shall perform and complete all Services in a diligent and timely manner. Provider’s failure to adhere to stated schedules, if any, may result in Anaheim’s election to terminate this Agreement.
3.2 The time period(s) specified for delivery/performance of the Services, pursuant to this Agreement, shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Provider, including, but not restricted to, acts of God or of the public enemy; unusually severe weather, fires, earthquakes, floods, pestilence, or other natural catastrophes; epidemics; quarantine restrictions; riots; strikes; freight embargoes; wars; litigation; civil disturbance or disobedience; labor dispute; labor or material shortage; sabotage; change in government priorities; restraint by court order or public authority; and action or non-action by or inability to obtain the necessary authorization or approvals from any governmental agency or authority, and/or acts of any governmental agency, including Anaheim, which by the exercise of due diligence such Party cannot reasonably be expected to avoid and by which exercise of due diligence has been unable to overcome, if Provider shall within ten (10) days of the commencement of such delay notify Anaheim’s project administrator (“Project Administrator”) in writing of the causes of the delay. The Project Administrator shall ascertain the facts and the extent of delay and may extend the time for performing the Services for the period of the delay if, in the judgment of the Project Administrator, such delay is justified. The Project Administrator’s determination shall be final and conclusive upon the Parties. In the event of delay, however caused, Provider’s sole remedy shall be an extension of the Term, pursuant to this Section, and Provider shall not be entitled to recover damages against Anaheim.
4. COMPENSATION
4.1 Anaheim shall pay Provider for the Services satisfactorily received pursuant to the unit prices/billing rates contained in the Schedule of Compensation attached hereto as Exhibit A and incorporated herein by reference (“Schedule of Compensation”). No changes to the Schedule of Compensation’s billing rates may be made without the prior written authorization of the General Manager or designee.
4.2 Except as provided in Sections 14.2 and 15.1, Anaheim shall reimburse Provider for only those costs or expenses specifically approved in writing in advance by the General Manager or designee.
4.3 Except as provided in Sections 4.4, 14.2, and 15.1 below, the Parties understand and agree that full and complete payment for all Services provided under this Agreement, including, but not limited to, all reimbursable expenses and subconsultant fees, if any, shall not exceed six hundred and sixty thousand dollars ($660,000) (“Contract Amount”). The Contract
4 Amount does not constitute a guarantee of payment to Provider but instead constitutes a spending option for Anaheim, as may be needed.
4.4 The General Manager or designee is authorized to approve additional expenditures not to exceed fifteen (15%) of the Contract Amount for additional services or products that are not included in the Scope of Services (“Extra Services”), provided that the General Manager determines that (a) the Extra Services are necessary for the successful completion of the Services; (b) the proposed Extra Services were unforeseen by Anaheim at the time it entered into the Agreement; (c) budget appropriations are available; and (d) in the General Manager’s professional opinion, it is in Anaheim’s best interest to receive the Extra Services.
4.4.01 In no event shall Provider render Extra Services without the written authorization of the General Manager or designee.
4.4.02 Extra Services shall be billed at either the rates/unit prices set forth in the Schedule of Compensation or at a fixed price, at the General Manager’s discretion. If billed at a fixed price, Provider shall provide Anaheim with a general description of the Extra Services to be performed with a proposed price.
4.4.03 Any approved Extra Services will be incorporated into the Services and the Agreement upon the Parties’ execution of a letter agreement (“Extra Services Letter”) that contains (a) the agreed price for the Extra Services and (b) a description of the Extra Services.
Provider shall commence performance of the Extra Services either upon the Parties’ execution of the Extra Services Letter or such other time expressly indicated therein.
4.4.04 Other than the Extra Services that the General Manager or designee is authorized to approve pursuant to this Section 4.4, Provider shall not render additional Services beyond the scope of this Agreement unless such services are first approved by a written amendment to this Agreement.
4.5 Provider shall submit to Anaheim (1) annual invoices for all Services that require annual payment (i.e., Lease and Database Services) prior to the beginning of the applicable 12- month performance period of the invoice, and (2) monthly invoices for all other Services or costs from the preceding month. All invoices shall be based on the line items contained in Exhibit A.
For items authorized in advance by Anaheim, for which Anaheim determines there is no line- item equivalent listed, Provider’s invoice shall include the name of the person who performed the work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed and a description of any reimbursable expenditures. Anaheim shall pay Provider no later than thirty (30) days after approval of the monthly invoice by Anaheim staff.
4.6 All Parties recognize that the continuation of this Agreement after the close of any fiscal year of Anaheim, which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or covering such contract items as an expenditure in said budget.
Anaheim does not represent that said budget item will be actually adopted, said determination being the determination of the City Council at the time of the adoption of the budget herein. No
5 penalty shall accrue to Anaheim in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, the Parties shall negotiate a settlement based on monies paid and due, items delivered, and Services provided.
5. PROJECT MANAGER
5.1 Provider designates Steve Noble as its “Project Manager,” who shall coordinate the Services. This Project Manager shall be available to Anaheim at all reasonable times during the Term of this Agreement. The foregoing Project Manager shall be responsible during the Term of this Agreement for directing all activities of Provider.
5.2 Any personnel or subconsultant, if any, who fail or refuse to perform the Services in a manner acceptable to Anaheim or who are determined by Anaheim, in its sole discretion, to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, or a threat to the safety of persons or property, shall be promptly removed from the Project by Provider at the request of Anaheim. Provider warrants that it will continuously furnish the necessary personnel to complete the Services on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
The Anaheim Public Utilities Department (“APU”) will administer this Agreement. The following APU employees are authorized to take the below actions pursuant to this Agreement:
• The General Manager is authorized to take any action on behalf of Anaheim as set forth herein and to terminate this Agreement in accordance with Section 27 below.
• Anaheim designates Electric Operations Manager – Field Services as its “Project Administrator.” The General Manager or designee may change the Project Administrator at any time, and Anaheim will provide Provider written notice of such change as soon as is practical. The Project Administrator, or designee, shall have the power to act on behalf of Anaheim for ordering, reviewing, and approving all Services performed by Provider under this Agreement. The Project Administrator shall not be authorized to approve Extra Services, change unit prices/billing rates, or terminate Services under this Agreement.
7. STANDARD OF CARE
7.1 As a material inducement for Anaheim to enter this Agreement, Provider represents and warrants that Provider is a provider of first-class work and services and is experienced in performing the Services contemplated herein, and in light of such status and experience Provider covenants that it shall follow the highest professional standards in performing the work and Services required hereunder and that all work will be of good quality.
Provider further warrants that all employees and subcontractors, if any, shall have sufficient skill and experience to perform the Services assigned to them. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.
6 7.2 Provider represents and warrants to Anaheim that it has, shall obtain, and shall keep in full force in effect during the Term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance, and approvals of whatsoever nature that is legally required of Provider to practice its profession, including any licenses and certifications, if any, listed in Exhibit A. Provider shall maintain a City of Anaheim business license during the Term.
7.3 At no cost to Anaheim, Provider shall re-perform any Services that Anaheim reasonably deems unsatisfactory.
8. FAMILIARITY WITH WORK
By executing this Agreement, Provider represents and warrants that Provider: (i) has thoroughly investigated and considered the Services to be performed; (ii) has carefully considered how the Services should be provided; and (iii) fully understands the facilities, difficulties, and restrictions attending the provision of the Services under this Agreement. Should Provider discover any latent or unknown conditions materially differing from those inherent in the provision of such Services or as represented by Anaheim, Provider shall immediately inform Anaheim of such fact and shall not proceed except at Provider’s risk until written instructions are received from Anaheim.
9. INDEPENDENT CONTRACTOR
9.1 Neither Anaheim nor any of its employees shall have any control over the manner, mode, or means by which Provider, its agents or employees, perform the Services, except as otherwise set forth herein. Except as expressly provided herein, Anaheim shall have no voice in the selection, discharge, supervision, or control of Provider’s employees, servants, representatives or agents, or in fixing their number, compensation, or hours of service. Provider shall perform all Services as an independent contractor of Anaheim and shall remain at all times, as to Anaheim, a wholly independent contractor with only such obligations as are consistent with that role. Provider shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of Anaheim. Anaheim shall not in any way or for any purpose become or be deemed to be a partner of Provider in its business or otherwise or a joint venturer or a member of any joint enterprise with Provider.
9.2 In consideration for the compensation Anaheim pays to Provider, Provider agrees that Anaheim shall not be liable or responsible for any benefits, including, but not limited to, worker’s compensation, disability, retirement, life, unemployment, health, or any other benefits that Provider offers to its employees/agents, and Provider agrees that it shall not sue or file a claim, petition, or application therefor against Anaheim or any of its appointed or elected officials, officers, employees, agents, representatives, or sureties.
10. INSURANCE
10.1 Without limiting Anaheim’s right to indemnification, it is agreed that Provider shall secure, prior to commencing any activities under this Agreement, and maintain, during the term of this Agreement, insurance coverage as follows:
7 10.1.01 Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence/accident/illness/injury.
10.1.02 Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Consultant’s Liability where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form. Such insurance shall be written on a primary basis but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Anaheim, in writing, at the inception of this Agreement.
10.1.03 Commercial Automobile Liability Coverage including—as applicable—owned, non-owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit, as required by California law.
10.1.04 Professional Liability Insurance, inclusive of Cyber Liability Insurance where required, in an amount not less than $2,000,000 per occurrence or per claim.
Such insurance shall be written on a primary basis but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self-insured retention is disclosed to Anaheim, in writing, at the inception of this Agreement.
10.2 Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval by Anaheim’s Risk Manager prior to the inception of the final Agreement.
10.3 Provider agrees that this insurance shall not be voluntarily cancelled or limited in scope or coverage by Provider until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., second floor, Anaheim, CA 92805. This does not apply to cancellation for non-payment of premium, which requires notice of not less than ten (10) days.
10.4 Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
10.4.01 “It is agreed that any insurance maintained by Provider pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self-insurance maintained by the City of Anaheim.”
10.4.02 “The City of Anaheim, its officers, agents, employees, representatives and Anaheim-designated volunteers are added as additional insured as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”
10.5 Prior to commencing any work under this Agreement, Provider shall deliver to Anaheim insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days
8 of the execution date of this Agreement, Provider shall provide Anaheim (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable to Anaheim evidencing that the coverage, terms, and conditions set forth in the above-referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers (i) admitted to write insurance in California, (ii) possessing an A. M. Best’s rating of A VII or higher, or (iii) otherwise acceptable to Anaheim, with prior written permission from Anaheim. In the event that a claim or other legal action is filed against Anaheim, and if Anaheim, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then Anaheim has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the parties agree that Provider shall fully defend, hold harmless, and indemnify Anaheim against any such claim or other legal action.
10.6 In addition to other remedies Anaheim may have if Provider fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Anaheim may, at its sole option:
• Order Provider to stop work under this Agreement and/or withhold any payment(s) that become due to Provider hereunder until Provider demonstrates compliance with the requirements hereof;
• Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies Anaheim may have and is not the exclusive remedy for Provider’s failure to maintain insurance or secure appropriate endorsements.
10.7 Nothing herein contained shall be construed in any way as limiting the extent that an Provider may be held responsible for payments of damages to persons or property resulting from Provider’s, (or Provider’s agent or sub-agent, if any) performance of the work covered under this Agreement.
10.8 In the event Provider hires other persons or firms to perform some of the work related to this Agreement, Provider shall ensure (i) that the acts or omissions of such persons or firms are covered under the above-referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of Provider under this Agreement (except for firms that are not performing professional services—such firms shall not be required to carry the above-referenced professional liability insurance); and in either instance, Provider shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to Anaheim.
10.9 Anaheim’s Risk Manager is hereby authorized to amend the requirements set forth herein in the event that such amendment is in Anaheim’s best interest.
9 11. INDEMNIFICATION
11.1 As respects acts, errors or omissions in the performance of professional services, Provider agrees to indemnify and hold harmless Anaheim, its officials, officers, and employees from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature, directly arising out of the negligent acts, errors or omissions of the Provider or any sub- agent in the performance of professional services under this Agreement.
11.2 As respects all acts, errors or omissions that do not arise directly out of the performance of professional services, including but not limited to those acts, errors or omissions typically covered by general and automobile liability insurance, Provider agrees to indemnify, defend (at Anaheim’s option), and hold harmless Anaheim, its officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), arising out of or in connection with Provider’s (or Provider’s agent or sub-agent, if any) acts, errors, omissions, or work, relative to this Agreement; except for those Claims that arise out of the sole negligence or willful misconduct of Anaheim.
11.3 The obligations set forth in this indemnification provision (i) shall be in effect without regard to whether or not Anaheim, Provider, or any other person maintains, or fails to maintain, insurance coverage, or a self-insurance program, for any such Claims; and (ii) shall survive the termination of this Agreement.
11.4 Neither Party shall be liable to the other for indirect, incidental, special, or consequential damages, or lost profits.
11.5 In no event shall Provider’s liability to Anaheim under Section 11 exceed the amount of valid and collectible insurance carried by, maintained by, or otherwise available to Provider or Provider’s professional staff, contractors, or sub-contractors, which is applicable to any claim, loss, costs, defense, or liability arising out of this Agreement.
12. INTELLECTUAL PROPERTY INDEMNITY
12.1 Provider shall defend and indemnify Anaheim and its officials, officers, and employees against the following , including attorneys’ fees and costs:
12.1.01 All intellectual property liability for Anaheim’s authorized use of and benefit from the Services or work product, subscriptions, or documents provided by Provider to Anaheim pursuant to this Agreement, including for infringement of any U.S. letters patent, trademark, or copyright infringement.
12.1.02 Any failure by Provider to comply with the terms and conditions of any OSS contained in the Software (as those terms are defined in Exhibit B) provided pursuant to this Agreement.
12.2 Anaheim shall promptly notify Provider of any legal proceedings or claims brought or threatened against Anaheim for alleged infringement of patent rights occasioned by Anaheim’s use of any Services or methods furnished under this Agreement, allow Provider to
10 undertake the defense of the same, and promptly furnish Provider with all information in Anaheim’s possession relating thereto.
13. PERFORMANCE OF SERVICES
Provider is responsible for keeping the Project Administrator or designee informed on a regular basis regarding the status and progress of the Services, activities performed and planned, and any meetings that have been scheduled or are desired.
14. WARRANTY
14.1 Provider represents and warrants that the Leased Equipment, including any firmware, will (a) conform in all material respects with its specifications; (b) be free from all liens, claims, and encumbrances; and (c) not fail when deployed in the field as a result of a material impairment, provided that if such Leased Equipment does fail during deployment, Provider will provide a repair or replacement of such Leased Equipment, as the circumstances may warrant and subject to Anaheim’s payment of any obligations set forth in Section 14.2, and ship oversight the repaired or replacement Leased Equipment to Anaheim’s designated facility within two (2) days of Anaheim’s first providing notice to Provider’s customer service phone number. Any Leased Equipment that cannot be repaired onsite must be returned to a Provider- designated facility.
14.2 Provider’s repairs, adjustments, or replacement of impaired Leased Equipment pursuant to this warranty shall be subject to the following costs charged to Anaheim, if any, based on the following circumstances:
14.2.01 If occasioned by inherent defect in or reasonable wear and tear on the Leased Equipment, then without any charge to Anaheim for transportation, including handling costs (if any), or for Provider’s costs for repair, adjustment, or replacement;
14.2.02 If occasioned by any cause other than inherent defect in or reasonable wear and tear on the Leased Equipment (such as any damage generated from Anaheim’s excessive wear and tear, misuse, and/or abuse of the Leased Equipment, including but not limited to direct oil injection into the applicable Leased Equipment), then at Anaheim’s cost for transportation, including handling costs (if any), and for Provider’s actual cost of repair, adjustment, or replacement; and
14.2.03 If occasioned because Anaheim is unable to return the Leased Equipment for any reason (including but not limited to units that are lost, stolen, or damaged beyond reasonable repair), then at Anaheim’s cost for the replacement fee for the applicable Leased Equipment, including any applicable re-stocking fees and/or other charges, which shall be the list price for the applicable Leased Equipment in effect at the time of replacement.
14.3 Anaheim shall notify and return, if necessary, impaired Leased Equipment to Provider as soon as such impairment is discovered.
14.4 If requested by Provider, Anaheim shall return any Leased Equipment to Provider for calibration and testing at Provider’s cost for shipping and handling.
11 14.5 Non-gaseous consumables (one year – 300 test supply) will be supplied to Anaheim at no additional charge (solely with applicable Leased Equipment).
15. LEASED EQUIPMENT TERMS
15.1 All Leased Equipment and Doble instruction books shall at all times remain and be the sole and exclusive property of Provider, and Anaheim shall have no property rights to such items except the rights to possess and use the same during the Term. Any Leased Equipment shall, upon Anaheim’s physical receipt and until redelivery to a Provider-designated facility, be held at Anaheim’s sole risk of loss from injury, loss, or destruction from any cause whatsoever, except as provided in Section 14.2.
15.2 To the extent possible, Anaheim shall promptly return all Leased Equipment and Doble instruction books to Provider at the expiration or early termination of the Term, which should be in the same condition as Provider delivered them to Anaheim, manifestation of inherent defects and reasonable wear and tear excepted. Anaheim shall continue to comply with the terms, provisions, and conditions of this Agreement respecting any Leased Equipment that Anaheim retains after the Term is no longer effective. In such scenario, Anaheim shall have sixty (60) days to cure by returning the applicable equipment. After such cure period, Provider may charge Anaheim the latest applicable Leased Equipment price listed in Exhibit A, prorated for each month that Anaheim retains the Leased Equipment beyond the cure period, multiplied at two times (2x) the price, until either (1) the Leased Equipment is confirmed returned to Provider or (2) the Parties execute a new agreement.
15.3 Anaheim shall use the Leased Equipment only in accordance with the written or printed instructions that Provider furnished and, except as Provider may expressly authorize in writing, in order to permit its use only by Anaheim’s employees and authorized agents and only upon Anaheim’s property. The words “only upon Anaheim’s property” shall be deemed to include power systems on which Anaheim has been retained to perform testing and/or maintenance. This shall be a non-exclusive right and shall not be construed as a prohibition against direct dealings and transactions between Provider and any of these systems.
15.4 Without limiting any other terms of this Agreement, Anaheim agrees to refrain from: (a) breaking any seal on, repairing, or permitting repairs on any Leased Equipment, except at the request or with the consent of Provider; (b) manufacturing or causing or permitting to be manufactured copies of any Leased Equipment; or (c) in any way impairing, reverse engineering, or otherwise manipulating or handling any Leased Equipment in a manner inconsistent with the advice or consent of any authorized client service engineer or otherwise violating any of Provider’s patents, copyrights, trade secrets, or other intellectual property rights.
16. SUPPLEMENTAL TERMS
16.1 With respect to Services that are Software (as defined in Exhibit B), the Parties shall additionally comply with the terms of Exhibit B, the Master End User License Agreement (“EULA”).
16.2 With respect to Services other than Software, the Parties shall additionally comply with the terms of Exhibit C, the Master Terms and Conditions.
12 17. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
The Parties recognize that a substantial inducement to Anaheim for entering into this Agreement is the professional reputation, experience, and competence of Provider. The Parties have no right to assign, transfer, delegate, or otherwise encumber (together “Assignment”) any rights, obligations, duties, interests, or privileges in or arising out of this Agreement, including as a result of a merger, acquisition, consolidation, or other form of corporate assimilation, without the prior written consent of the other. Any such purported Assignment without the other Party’s prior consent shall be void. If a Party approves an Assignment, this Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of and shall apply to the permitted successors and assigns of the other Party.
18. SUBCONTRACTING
Except for those subcontractors set forth in the Scope of Services, if any, Provider shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of Anaheim. Provider shall be fully responsible to Anaheim for all acts and omissions of any approved subcontractor. Nothing in this Agreement shall create any contractual relationship between Anaheim and the subcontractor, nor shall it create any obligation on the part of Anaheim to pay or ensure the payment of any monies due to any such subcontractor other than as otherwise required by law. Anaheim is an intended beneficiary of any work performed by any subcontractor for purposes of establishing a duty of care between the subcontractor and Anaheim pursuant to this Agreement.
19. USE AND OWNERSHIP OF DOCUMENTS AND DATA
19.1 Anaheim shall furnish to Provider such documents, data, samples/specimens, and materials as may be relevant and pertinent to the provision of Services hereunder as Anaheim may possess or acquire.
19.2 All documents, data, and written materials furnished by Anaheim to Provider pursuant to Section 19.1 shall remain the property of Anaheim and shall be returned to Anaheim upon termination of this Agreement, for any reason. All documents, data, or written material prepared or caused to be prepared by Provider, its officers, employees, agents, and subcontractors in the course of implementing this Agreement shall become the exclusive property of Anaheim, and Anaheim shall have the sole right to use such materials in its discretion without further compensation to Provider or any other party. Provider shall, at Provider’s sole cost and expense, provide such documents, data, and material to Anaheim upon prior written request.
20. CONFIDENTIALITY
20.1 “Confidential Information” means all information or material that is either (1) marked or identified as “Confidential,” “Restricted,” “Proprietary,” or similarly marked, or (2) known or should be known under the circumstances by the Receiving Party to be considered confidential or proprietary by the Disclosing Party. Confidential Information includes all information in any form furnished in connection with this Agreement by the Disclosing Party or its “Representatives” (defined as elected or appointed officials, affiliates, directors, officers,
13 employees, agents, advisors, or consultants of Party or any of its subsidiaries or affiliates) to the Receiving Party or its Representatives and specifically includes Anaheim’s individually identifiable customer information, customer usage data, and financial data.
20.1.01 Confidential Information also includes the Software and all of the software code (including, but not limited to, any third party software licensed with the Software), the Software performance information, Documentation, and any trade secrets, concepts, ideas, improvements, processes, plans, designs, specifications, architecture, database tables and structures, data record layouts, prototypes, models, methods, processes, algorithms, Content, data bases, and all other business operational, financial (capitalized terms used in this Paragraph have the meaning ascribed to them in Exhibit B).
20.1.02 Confidential Information does not include information that: (a) was already in the possession of, or known by, the Receiving Party without an obligation of confidentiality as of the Effective Date; (b) is in the public domain at the time of disclosure or enters the public domain through no breach of this Agreement; (c) is lawfully furnished or disclosed to the Receiving Party by a third party without an obligation of confidentiality; (d) is independently developed by the Receiving Party without using the Disclosing Party’s Confidential Information; or (e) is authorized in writing by the Disclosing Party to be released from confidentiality obligations.
20.2 Each Party shall hold the other’s Confidential Information in confidence, not disclosing it to any third party or using it for any purpose other than as specified in this Agreement. The Party providing Confidential Information (“Disclosing Party”) to the other Party (“Receiving Party”) remains the sole owner of its Confidential Information. Except as provided elsewhere in this Agreement, no rights or licenses in any Confidential Information, patents, copyrights, software, or other technology are granted to the Receiving Party.
20.3 Each Party shall protect the other’s Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, that the Receiving Party utilizes for its own confidential information.
20.4 By virtue of this Agreement, each Party hereto may disclose to the other Party information that is Confidential Information. This Agreement does not diminish, revoke, or supersede any existing confidentiality, non-disclosure, or similar agreement between the Parties that does not pertain to the subject matter of this Agreement. However, any Confidential Information, whether or not previously disclosed, that pertains to the subject matter of this Agreement shall be governed by the terms of this Section 20, which shall supersede any less- restrictive provisions of such previous agreement with respect to such Confidential Information.
Any Confidential Information relating to the subject matter of this Agreement that was exchanged under such previous agreement shall be treated as though it were exchanged under this Agreement as of the date of such exchange.
20.5 The Receiving Party will treat all Confidential Information of the Disclosing Party as confidential and proprietary, and the Receiving Party shall only use such information in furtherance of this Agreement. As such, the Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party and ensure that such Confidential Information
14 is not disclosed to any other person or entity, except as expressly permitted by this Agreement or as authorized in writing by the Disclosing Party. Receiving Party shall not disclose Confidential Information of the Disclosing Party received under this Agreement to any person other than its Representatives who require knowledge of such Confidential Information in furtherance of this Agreement. The Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of the Disclosing Party and advise such Representatives of the limitations on the use and disclosure and prohibition on making copies or summaries of such Confidential Information. The Receiving Party shall be responsible for any breach of this Agreement by its Representatives. Neither Party shall use the Confidential Information of the other Party for any commercial purpose.
20.6 If the Receiving Party becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of the Disclosing Party or is requested Confidential Information pursuant to the California Public Records Act or similar law, the Receiving Party will provide the Disclosing Party with written notice of such an occurrence (if so permitted) as soon as possible, but in no event later than five (5) days after knowledge of Provider’s obligation to such requirement. Thereafter, at its sole costs and expense, the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. So long as it is consistent with applicable law, the Receiving Party will not oppose action by, and the Receiving Party will cooperate with, the Disclosing Party, at the Disclosing Party’s sole cost and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. If the Disclosing Party fails to obtain such protective order or other remedy, or if the Disclosing Party waives compliance with the requirements of the preceding sentence, the Receiving Party will disclose only that Confidential Information that it is legally required to disclose and will exercise commercially reasonable efforts, at Disclosing Party’s expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
20.7 In the event the Receiving Party discloses, disseminates, or releases any Confidential Information, except as expressly permitted by this Agreement, such disclosure, dissemination, or release will be deemed a material breach of this Agreement, and the Disclosing Party may demand prompt return of all Confidential Information previously provided to the Receiving Party. As soon as the Receiving Party becomes aware that it has made an unauthorized disclosure of Confidential Information, the Receiving Party shall take any and all necessary actions to recover the improperly disclosed Confidential Information and immediately notify Disclosing Party regarding the nature of the unauthorized disclosure and the corrective measures being taken. Each Party agrees that any breach of their confidentiality obligations could cause irreparable harm to the other Party, the amount of which would be extremely difficult to estimate. Accordingly, it is understood and agreed that monetary damages would not be a sufficient remedy for any material breach of this Agreement and that specific performance and injunctive relief in addition to monetary damages shall be appropriate remedies for any breach or any threat of such breach. The provisions of this Paragraph are in addition to any other legal rights or remedies the Disclosing Party may have.
15 20.8 Within two (2) weeks of the termination of this Agreement, Provider will return to Anaheim or destroy, to the extent permitted by law, any and all Confidential Information, including all originals, copies, translations, transcriptions, or any other form of said material without retaining any copy or duplicate thereof; provided that Provider may retain Confidential Information contained on backup media created in the ordinary course of business; provided further that there is no effort to access such Confidential Information, and Provider’s confidential obligations with respect to such information shall continue so long as such information is retained. Provider shall certify in writing the destruction of the Confidential Information.
Anaheim may perform an audit of Provider’s records to confirm the return or destruction of the Confidential Information. Anaheim shall have this audit right for three (3) years after the termination of this Agreement.
20.9 Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement.
21. FISCAL RECORDS AND AUDIT
21.1 Provider shall keep records and invoices in connection with the Services. Provider shall use recognized accounting methods in preparing such reports and invoices. Anaheim reserves the right to designate its own employee representative(s) or its contracted representative(s) with a certified public accounting firm, who shall have the right to audit Provider’s accounting procedures and internal controls of Provider’s financial systems and to examine any cost, revenue, payment, claim, other records, or supporting documentation resulting from any items set forth in this Agreement. If Provider fails to provide supporting documentation satisfactory to Anaheim for costs charged, then Provider agrees to reimburse Anaheim for those costs. Any such audit(s) shall be undertaken by Anaheim or its representative(s) at reasonable times and in conformance with generally accepted auditing standards. Provider agrees to fully cooperate with any such audit(s).
21.2 This right to audit shall extend during the length of this Agreement and for a period of three (3) years, or longer if required by law, following the date of final payment under this Agreement. Provider agrees to retain all necessary records/documentation for the entire length of this audit period.
21.3 Provider will be notified in writing of any exception taken as a result of an audit.
Any adjustments and/or payments that must be made as a result of any such audit or inspection of Provider’s invoices and/or records shall be made within thirty (30) days from presentation of Anaheim’s findings to Provider. If Provider fails to make such payment, Provider agrees to pay interest, accruing monthly, at a rate of ten percent (10%) per annum unless another section of this Agreement specifies a higher rate of interest, which higher rate would then prevail. Interest will be computed from the date of written notification of exception(s) to the date Provider reimburses Anaheim for any exception(s). If an audit inspection or examination in accordance with this article discloses overcharges (of any nature) by Provider to Anaheim in excess of one percent (1%) of the value of that portion of the Agreement that was audited, the actual cost of Anaheim’s audit shall be reimbursed to Anaheim by Provider.
16 22. WITHHOLDINGS
Anaheim may withhold payment to Provider of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Provider shall not discontinue the Services as a result of such withholding. Provider shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums, and his decision shall be final.
Provider shall be entitled to receive interest on any withheld sums at the rate of return that Anaheim earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld.
23. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional inexperience of Provider that result in expense to Anaheim greater than what would have resulted if there were not errors or omissions in the Services performed by Provider, the additional cost and expense shall be borne by Provider. Nothing in this paragraph is intended to limit Anaheim’s rights under the law or any other sections of this Agreement.
24. ANAHEIM’S RIGHT TO EMPLOY OTHER PROVIDERS
Provider acknowledges and agrees that this Agreement and the provision of services hereunder are nonexclusive and that Anaheim may enter into similar agreements with other entities for the provision of similar services.
25. CONFLICTS OF INTEREST
Provider or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the “Act”), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Services performed under this Agreement and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Provider shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by Anaheim. Provider shall indemnify and hold harmless Anaheim for any and all claims for damages resulting from Provider’s violation of this Section.
26. NOTICES
Any notice to be made under this Agreement shall be in writing and shall be deemed effective when: (1) delivered personally, upon receipt or refusal of receipt by the receiving Party; (2) sent by registered or certified mail, return receipt requested, postage prepaid, on the date shown on the return receipt or the date of refusal of receipt; (3) sent by recognized overnight courier service, the business day following deposit with the courier, with delivery fees prepaid; or (4) sent by facsimile transmission (“FAX”), upon the sending Party’s receiving confirmation of receipt from the receiving Party. Notices shall be addressed to the Parties at the following addresses:
17 If to Anaheim: Anaheim City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
FAX No. (714) 765-4105
With copies to: Public Utilities General Manager
City of Anaheim
201 S. Anaheim Blvd., Suite 1101
Anaheim, CA 92805
FAX No. (714) 765-4138
To Provider: Doble Engineering Company
Attn: Jonathan O. Nilsen, Esq., Senior Counsel
123 Felton Street,
Marlborough, MA 01752
Telephone No.: (617) 393-2998
E-mail: [email protected]
Each Party may change its address, e-mail, or FAX for notice by providing written notice to the other in accordance with this Section.
27. EARLY TERMINATION
27.1 “Default” shall mean the failure of Provider to perform any of Provider’s duties or obligations or the breach by Provider of any of the terms and conditions set forth in this Agreement. In addition, Provider shall be deemed to be in Default upon Provider’s (i) application for, consent to, or suffering of, the appointment of a receiver, trustee, or liquidator for all or a substantial portion of its assets; (ii) making a general assignment for the benefit of creditors; (iii) being adjudged bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization, or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing); or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution, or seizure of all or a substantial portion of Provider’s assets or of Provider’s interests hereunder.
27.2 Anaheim shall not be deemed to be in default in the performance of any obligation required to be performed by Anaheim hereunder unless and until Anaheim has failed to perform such obligation for a period of thirty (30) days after receipt of written notice from Provider specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of Anaheim’s obligation is such that more than thirty (30) days are required for its performance, then Anaheim shall not be deemed to be in default if Anaheim shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion. If Anaheim defaults, then Provider by further written notice to Anaheim may immediately terminate Anaheim’s rights under this Agreement. Upon such termination, and after 30 days’ written notice by Provider seeking repossession, Anaheim authorizes Provider and its agents to enter upon Anaheim-designated premises where Leased
18 Equipment and or Doble instruction books are located to take possession of and remove the same.
27.3 In the event of any Default, Anaheim may immediately terminate this Agreement.
Such termination shall be effective immediately upon receipt by Provider of written notice from Anaheim. In such event, Provider shall have no further rights hereunder, and Anaheim shall have all other rights and remedies as provided by law.
27.4 Anaheim may withhold any payments to Provider for the purpose of set-off until such time as the exact amount of damages due Anaheim from Provider is determined. In addition, Anaheim may pursue all remedies available under law for breach of this Agreement.
The waiver by either Party of any breach to this Agreement shall not constitute a waiver as to any succeeding breach.
28. COMPLIANCE WITH ALL LAWS
Provider shall at its own cost and expense comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal, state, county, or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Provider shall conform to applicable local, county, state, and federal laws, rules, regulations, and permit requirements and be subject to approval of the Project Administrator.
29. WAIVER
A waiver by either Party of any breach, of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character.
30. INTEGRATED CONTRACT
This Agreement and the Exhibits hereto contain the entire agreement between the Parties with respect to the matters covered hereby, and no agreement, statement, or promise made by either Anaheim or Provider that is not contained herein shall be valid or binding. No prior agreement, understanding, or representation pertaining to any the matters covered hereby shall be effective for any purpose. Capitalized terms defined in this Agreement have the same meaning when used in the Exhibits.
31. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits, or any other attachments hereto, the terms of this Agreement shall govern.
32. INTERPRETATION
Each Party acknowledges that he/she/it has had the benefit of advice of competent legal counsel with respect to its decision to enter this Agreement. The provisions of this Agreement shall be interpreted to give effect to their fair meaning and shall be construed as prepared by both Parties.
19 33. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both Parties and approved as to form by the Anaheim City Attorney.
34. SEVERABILITY
If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement or the application of its terms and provisions to persons and circumstances other than those to which it has been held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
35. REMEDIES CUMULATIVE
The remedies given to Anaheim and Provider herein shall be cumulative and are given without impairing any other rights given Anaheim or Provider by statute or law now existing or hereafter enacted and the exercise of any one remedy by Anaheim or Provider shall not exclude the exercise of any other remedy.
36. NO THIRD-PARTY BENEFICIARIES
The Parties intend that neither rights nor remedies be granted to any third party as a beneficiary of this Agreement or of any covenant, duty, obligation, or undertaking established herein.
37. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement, and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, California.
38. DISCRIMINATION
Provider agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry, national origin, or other prohibited basis in its provision of Services or hiring of subcontractors or employees. To the extent this Agreement provides that Provider offer accommodations or services to the public, such accommodations or services shall be offered by Provider to the public on fair and reasonable terms.
39. SIGNATURE AUTHORITY
Each Party and each Party’s signatory represents and warrants that each is duly authorized to execute and deliver this Agreement on behalf of such Party and that this Agreement is binding upon such Party in accordance with its terms. Upon Anaheim’s request,
20 Provider shall deliver a certified copy of its governing board’s resolution or certificate authorizing or evidencing such execution.
40. HEADINGS
The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
41. COUNTERPARTS AND ELECTRONIC SIGNATURE
This Agreement may be executed in counterparts, each deemed an original and together constituting one instrument. Digital signatures obtained through DocuSign shall be considered valid and binding as though signed in ink.
42. EFFECTIVE DATE
This Agreement shall be effective on the latest date on which this Agreement is executed by Anaheim (“Effective Date”). Anaheim shall have the authority to fill in the date field opposite the Provider’s signature if Provider fails to write a date. [SIGNATURES ON FOLLOWING PAGE]
A-2
• Transformer turns ratio (“TTR”) test and TTR insulation test to detect transformer winding issues; • Leakage reactance or short circuit impedance testing to evaluate transformer winding deformation; • Single-phase and three-phase equivalent leakage reactance measurement; • Transformer loss measurement.
Leased Equipment includes all testing assistant accessories, such as testing leads, grounding supports, safety switches, strobe lights, grounding relay interlocks, and DTA Software.
Leased Equipment and DTA Software is capable of promptly analyzing test results by comparing the results to the Provider’s centralized master database, which database includes data for the same brand, model, and similar age of equipment. The Leased Equipment provides understandable explanations regarding apparatus status and clear recommendations for maintenance or repair activities. Test results are easily comparable with Anaheim’s past equipment test results.
Leased Equipment adheres to the following internationally recognized standards to ensure optimal performance, safety, and compliance:
• Electromagnetic Compatibility (“EMC”) Standards:
o IEC 61000-4-2: Electrostatic Discharge Immunity
o IEC 61000-4-3: Radiated, Radio-Frequency, Electromagnetic Field Immunity o IEC 61000-4-4: Electrical Fast Transient/Burst Immunity o IEC 61000-4-5: Surge Immunity
o IEC 61000-4-6: Immunity to Conducted Disturbances
o IEC 61000-4-11: Voltage Dips, Short Interruptions, and Voltage Variations Immunity Tests o IEC 801-2(1984): Electrostatic Discharge Requirements
A-4
(7) INSIDEVIEW
Premier
Implementation
Services (8 hours) - 2
business days
$5,560.00
(8) INSIDEVIEW
Premier Support
Services (10-hour
block)
$3,450.00
Total $15,331 $6,321 $6,321 $7,317 $7,317 $7,317 $8,471 $8,471 $9,339 $9,339 InsideView provides for the following features:
• A comprehensive fleet health overview at a glance;
• Customized alarm sets;
• Includes a dashboard and statistics view and a resampling and action management module; • Identifies transformer tanks due for manual sampling and determines the timing of next sample based on current test result and related standards;
• Flags new sample data requiring attention and is able to receive APU’s historical test results for comparison.
InsideView includes strong encryption mechanisms to protect data both in transit and at rest. Provider has secure infrastructure in place, including firewalls, intrusion detection, and prevention systems, and performs regular security audits. Provider is willing to provide documentation and audit reports upon request. InsideView has reliable backup mechanisms and disaster recovery plans in place to ensure data is protected and can be restored in the event of a data loss incident or system failure.
A-6
(13) Furanic Compounds in
Oil
$
90.00 $
90.00 $
90.00 $
104.00
$
104.00
$
104.00
$
115.00
$
115.00
$
127.00 $ 127.00
(14) Power Factor @ Room
Temperature & 100°C
$
45.00 $
45.00 $
45.00 $
52.00 $
52.00 $
52.00 $
58.00 $
58.00 $
64.00 $ 64.00
(15) PCB in Oil
$
50.00 $
50.00 $
50.00 $
58.00 $
58.00 $
58.00 $
65.00 $
65.00 $
72.00 $ 72.00
(16) Sulfur, D1275 -
Copper Corrosion
$
60.00 $
60.00 $
60.00 $
70.00 $
70.00 $
70.00 $
78.00 $
78.00 $
86.00 $ 86.00
(17) Degree of
Polymerization
$
300.00
$
300.00
$
300.00
$
350.00
$
350.00
$
350.00
$
390.00
$
390.00
$
430.00 $ 430.00
(18) Dissolved Metals
$
65.00 $
65.00 $
65.00 $
76.00 $
76.00 $
76.00 $
85.00 $
85.00 $
94.00 $ 94.00
(19) Metals, Bearing
Wear/Particulate
$
140.00
$
140.00
$
140.00
$
164.00
$
164.00
$
164.00
$
183.00
$
183.00
$
202.00 $ 202.00
Subtotal
*Doble Sampling Kit: Certified Particle Free Glass Bottle, Glass Syringe, Tygon tubing, Doble paperwork, and bottle label. Shipping fees from Doble to City of Anaheim are prepaid and added to sampling supply invoices. **Screen 6 Part test package includes the following tests: ASTM D1816-1mm gap, Acid Neutralization Number ASTM D974, Specific Gravity/Relative Density ASTM D4052, Interfacial Tension ASTM D971, Color Number ASTM D1500, Visual Examination ASTM D1524, and Water Content ASTM D1533.
Doble follows the latest ASTM and IEC test methods, with the exception of wear metals (Bearing Wear/Particulate), which is a Doble test method designed specifically for transformers that have pumps.
A-7
The above-listed Laboratory Services are capable of testing all critical gases, such as acetylene, methane, ethane, ethylene, hydrogen, carbon monoxide, carbon dioxide, oxygen, and nitrogen as well as furanic compounds in oil, oil quality, water content, corrosive sulfur, the degree of polymerization of paper, wear metals in oil, dissolved metals in oil, and other relevant parameters.
The methodology and evaluation of results used for the Laboratory Services complies with the following established American Society for Testing and Material (“ASTM”) standards to ensure accuracy and reliability:
• Dissolved Gas-in-oil Analysis: ASTM D3612
• Furanic Compounds-in-oil Analysis: ASTM D5837
• Dielectric Breakdown voltage: ASTM 1816-1 mm/D877
• Acid neutralization number: ASTM D974
• Specific gravity: ASTM D1298
• Relative density: ASTM D4052
• Interfacial Tension: ASTM D971
• Color: ASTM D1500
• Visual Condition: ASTM D1524
• Moisture content: ASTM D1533
• Power factor at 25°C and 100°C: ASTM D924
• Polychlorinated biphenyls (PCB)
• Corrosive Sulfur ASTM D1275 B
• Degree of Polymerization
B-1
EXHIBIT B
MASTER END USER LICENSE AGREEMENT
This Master End User License Agreement (hereinafter referred to as “EULA”) has been presented to User in conjunction with User’s attempt to use, try out, or install a computer program composed of a number of computer files, including but not limited to executables, knowledge files, data, slave files, and other supporting files (collectively “Software.”) Licensor is the developer of and the exclusive source and owner of this Software. Licensor may provide Software under this EULA in either an installed format or cloud-based solution, as further defined in the applicable documentation. Licensor provides this Software and other products like it to be used exclusively by authorized Licensees. Licensee herein has purchased or procured on a subscription basis this Software either directly from Licensor or from a Licensor authorized dealer under the Agreement. Licensee has been made aware of and offered an opportunity prior to purchase or lease of the Software to review the terms of this EULA. Licensee assumes all responsibility for the selection of the Software to achieve the Licensee’s intended results, and for the installation, use, and results obtained from the Software.
1. D
EFINITIONS
The following terms, when used in this EULA, have the following meanings:
1.1 Authorized Use means Licensee’s limited use of the Software or the outputs and results derived therefrom in whatever form as specified in an addendum to this EULA, when applicable.
1.2 Business Days means any weekday other than a day designated as a federal holiday.
1.3 Cloud Software means any subscription-based Software license solely with respect for Software offerings that are remotely accessed via a “cloud” network or otherwise through an internet browser.
1.4 Confidential Information means the Software and all of the software code (including, but not limited to, any third party software licensed with the Software), the Software performance information, Documentation, and any trade secrets, concepts, ideas, improvements, processes, plans, designs, specifications, architecture, database tables and structures, data record layouts, prototypes, models, methods, processes, algorithms, Content, data bases, and all other business operational, financial and Licensee information, whether patentable or not, that is (a) provided, developed, conceived or in any way disclosed by either Party.
1.5 Content means any information, business data, and any other materials provided by Licensee and entered into and processed by the licensed Software.
1.6 Documentation means any and all manuals, written documents, or embedded documentation, whether original, complete or partial copies, in electronic or paper form, provided by Licensor related to the Software, including but not limited to
B-2
Product Manuals, training materials, requirements specifications, release notes, and any other correspondence related to the installation and implementation of the Software.
1.7 Environment means the hardware, LAN, VPN, and all third-party operating and database systems, as specified in separately-supplied documents (solely for the applicable Software) that are required to run and utilize the Software, including network applications, database servers, and the computer processor unit or workstation used to operate, gain access to, or view the Software or any outputs and results therefrom linked thereto.
1.8 EULA means this EULA and the attached Supplemental EULA for Subscription- Based Software License (“Appendix A”).
1.9 Intellectual Property Rights means all patents, trademarks, service marks, registered designs, applications for any of the foregoing, trade and business names, unregistered trademarks and service marks, including goodwill in relation to the foregoing, Know-how, copyright, database rights, rights in designs (whether registerable or not), inventions, rights under licenses and consents in relation to any such rights and rights of the same or similar effect or nature that may be granted or recognized under United States, Canadian, or other foreign legislation in any part of the world.
1.10 Know-how means the trade secrets, processes, techniques, and methods of working, which are of a secret, confidential, or proprietary nature that have been or are being developed by Licensor and including without limitation all scientific, engineering, information, expertise, and manufacturing design and software specifications designs or codes (whether object code or source code) in or to the Materials.
1.11 Licensee means an entity that is a signatory to the Agreement or otherwise has accepted this EULA’s terms and conditions and which has been granted a license to use the Software as provided herein.
1.12 Licensor has the meaning assigned to it in the first paragraph of this EULA.
1.13 [Intentionally Omitted.]
1.14 Materials means the Software and the Documentation.
1.15 Modifications include any translation, abridgement, condensation, retrenchment, revision, correction, improvement, enhancement, customization, expansion, addition, update, upgrade, or other modification to the Materials.
1.16 Open Source Software, or “OSS,” means computer software components with its source code made available and licensed with an open-source license in which the copyright holder provides the rights to study, change, and distribute such software components for free to anyone and for any purpose. To the extent not
B-3
expressly restricted or reserved by the applicable OSS license, OSS as used herein does not include any derivate works developed by Licensor.
1.17 Product Manuals mean the user guides and manuals for use of the Software.
1.18 Significant Defect is any reproducible and verifiable material error, defect, bug, virus, design flaw, or other malfunction (taking into account the severity and technical difficulty in fixing the same) in the Software, which results from causes within Provider’s reasonable control and that have not resulted from the inoperability, incompatibility, action, or inaction, when reasonably required under the circumstances, of material supplied by Licensee.
1.19 Software has the meaning assigned to it in the first paragraph of this EULA.
Specifically with regard to InsideView DGA Diagnostics
TM, this excludes any
OSS, but includes all Modifications to such software that may be provided to the User by Licensor at any time.
1.20 Source Code means a copy of the source code version of all parts of the Software in human-readable form and in machine-readable form on machine-readable storage medium and that, when compiled, will produce the object code version of the Software.
1.21 Supplemental EULA means “Appendix A” to this EULA, which provides additional license terms specific to the Software identified in Exhibit A that is being licensed to Licensee. Terms in a Supplemental EULA shall have no effect on any Software separately licensed under a different Supplemental EULA.
1.22 TAL means a license key provided by Provider to the User that enables the User to activate and access certain functionalities of the Software for use with one specific piece of equipment possessed by the User.
1.23 Territory shall mean worldwide usage, subject to any restrictions on Territory expressly stated on the face of the applicable purchase order or in the applicable software license agreement, as the case may be.
1.24 Third Party Resource means a third party engaged by Licensee to integrate the Software into the Licensee’s business.
1.25 User(s) means any person who is authorized by Licensee to access or use the Materials.
2. I
NTELLECTUAL PROPERTY RIGHTS.
2.1 The Software identified in Exhibit A are proprietary products of Licensor and are protected by patent, copyright, trademark, trade dress, trade secret, and/or other intellectual property laws and international treaty. As between Licensee and Licensor, Licensee agrees that Licensor is the sole and exclusive owner of the
B-4
Software and Documentation and the intellectual property represented thereby or contained therein.
2.2 Licensor or its suppliers retain ownership of the Materials and any copies thereof, and all related Intellectual Property Rights, including, without limitation, all rights to any images, photographs, animations, videos, audio, text, and “applets” incorporated into the Materials.
2.3 Licensee and User are not permitted to create any modifications to or derivative works based upon any portion of the Materials, unless such modification or derivative work has been expressly authorized by the Licensor in writing.
2.4 The Materials, including without limitation, the structure, organization, user interface, user experience, and code of the Software, contain information and valuable trade secrets that are not generally known to the public. Except as provided in Section 20 of the Agreement, Licensee and User will treat as confidential and preserve the confidentiality of the Materials and will not disclose any portion of Confidential Information to any third party. The foregoing obligation does not apply to any information that: (a) was already in Licensee’s possession prior to acquiring any copy of the Materials, as shown by documentary evidence; (b) is or becomes publicly available through no fault of Licensee; or (c) is obtained by Licensee from a third person who through no inducement by Licensee and without breach by such third person of an obligation of confidence has obtained and disclosed such to Licensee. Information will not be deemed to be within the foregoing exceptions merely because it is: (i) embraced by more general information in the public domain or in the possession of the party receiving such information, or (ii) a combination of individual items of information that could be pieced together to reconstruct such combination from non-confidential information.
2.5 Licensee agrees to secure and protect the proprietary rights of Licensor in the Materials and all copies thereof (in whatever form) and to take appropriate action to secure and protect same by instruction to or agreement with its Users, provided that this does not require Licensee to undertake any legal or other financially burdensome actions without the Parties’ prior written consent and Licensor’s agreement to reimburse Licensee for actions taken. Licensee will not take any action that adversely affects Licensor’s Intellectual Property Rights or other proprietary rights in the Materials.
2.6 If Licensee plans to utilize the services of a Third Party Resource in connection with the implementation of the Materials in the Licensee’s business, prior to disclosing the Materials or any portion thereof to such Third Party Resource, Licensee will require that such Third Party Resource enter into a written non- disclosure agreement containing terms at least as restrictive as those set forth in this EULA with regard to maintaining the confidentiality of the Materials. In addition to any limitations stated in Appendix A herein, with regard to any such utilized Third Party Resource (i) the Software shall only be used on devices that
B-5
Licensee owns and/or controls, (ii) Licensee has an express written agreement with the Third Party Resource to provide Licensee with internal staff augmentation and/or similar information technology services; (iii) such Third Party Resource’s use of the Software is necessary; and (iv) Licensee remains fully liable at all times for any so-retained Third Party Resource’s use of the Software.
2.7 Open Source Software. In the event that the Software contains any OSS, Licensee’s use of such OSS shall be subject to the terms and conditions of the applicable OSS to the extent required by such OSS terms and conditions.
Licensee may view the terms of the OSS at
https://www.doble.com/privacy-
policy-legal-disclosures/doble-software-information-resources/ or contact Doble for additional information.
2.8 Specifically with regard to any OSS that may be included in the Software, the OSS is provided “as is”, without warranty of any kind, express or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose, and non-infringement. In no event shall Licensor, or the authors or copyright holders of the OSS, be liable for any claim, damages, or other liability, whether in an action of contract, tort, or otherwise, arising from, out of or in connection with the OSS, or the use or other dealings in the OSS.
3. L
ICENSE GRANT.
3.1 The Licensor grants Licensee a limited license to the Software, inclusive of any Cloud Software, identified in Exhibit A (“License Grant”).
3.2 Except to the extent expressly provided in Exhibit A, each License Grant shall be subject to the following limits:
3.2.1 Term. The License Grant shall be perpetual and irrevocable (subject to uncured material breach), except for a subscription-based License Grant, which shall be for a duration equal to the Term of the Agreement.
3.2.2 Termination For Cause. The Licensor may terminate the License Grant for cause upon providing written notice to the Licensee in the event that Licensee:
(a) is in violation of any laws that may apply to the License Grant, including, but not limited to U.S. Export Administration Regulations, and the U.S. FCPA;
(b) has caused or allowed the uncured infringement of the Software; (c) has failed to make the applicable payment of the undisputed License Fees; or
(d) voluntarily or involuntarily suspends, terminates, winds-up, or liquidates its business, becomes subject to any bankruptcy or
B-6
insolvency proceeding or its equivalent under applicable law; or becomes insolvent or subject to direct control by a trustee, receiver, or similar authority.
3.2.3 [Intentionally Omitted.]
4. LICENSE FEES AND PAYMENT TERMS.
4.1 [Intentionally Omitted.]
4.2 [Intentionally Omitted.]
4.3 In the event Licensee defaults pursuant to Section 27.2 of the Agreement for failure to pay Licensor sums due and owing, Licensor may, without prior notice and without waiving or limiting any other remedies to which it may be entitled to hereunder, in law or in equity, terminate the licenses granted herein and/or discontinue all further training, support, maintenance, or other services, including, without limitation, issuing software upgrades and enhancements until such time as all amounts due have been paid in full.
4.4 The Software license fees listed in Exhibit A (“License Fees”) exclude all Taxes.
Licensee will be responsible for payment of all such Taxes, except for taxes associated with Licensor’s business activities (e.g., Licensor’s income taxes or sales or use taxes to purchase materials), and any penalties or charges that accrue with respect to the non-payment of any Taxes.
4.5 [Intentionally Omitted.]
5. [I
NTENTIONALLY OMITTED.]
6. PRIVACY POLICY.
6.1 The Licensor continually seeks to improve its product offerings and generally improve users’ usage of the Software. For that purpose, Licensor has incorporated third-party analytic tools (collectively referred to as “cookies”) within the Software that tracks general user activities. These cookies are used to store anonymous, non-personally identifiable information. The cookies are utilized for the purpose of measuring general usage of the Software over time, continuity of the Software, and anti-fraud and information security purposes.
6.2 Licensor does not share any information with third parties. The cookies will be activated upon download of the Software, but may be disable by the Licensee at any time. Browser add-ons are available to users who wish to opt-out of this data collection (https://tools.google.com/dlpage/gaoptout
), and users may also refer to
the help information in their browser software for instructions on how to disable the cookies.
B-7
6.3 The internet protocol address of the electronic device accessing the Software is obfuscated in the communication sent to the server. In addition, the data collected by the cookies is securely stored, remotely on a server in a secure warehouse. The data is aggregated and presented meaningfully for use by the Licensor and cannot be reverse engineered to access the identity of any one individual, entity, product, and/or associated private data.
7. U.
S. GOVERNMENT END USERS.
7.1 The Materials are “commercial items” as that term is defined at 48 C.F.R. 2.101, and if Software is licensed hereunder, the Software consists of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the right to use and access the Materials with only those limited rights set forth herein.
8. H
IGH RISK ACTIVITY.
8.1 Licensee is solely responsible for the accuracy and adequacy of the Materials for Licensee’s intended use. The Materials are not fault-tolerant and are not designed or intended to directly operate or dictate the design of public-safety or hazardous equipment/systems in hazardous environments requiring fail-safe performance, including, without limitation, nuclear facilities, air or space travel, power plants or communication systems, weapons systems, life support or medical operations or machines, or any other equipment/system in which the failure of the Materials could directly cause such equipment/system to cause death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”).
Licensor expressly disclaims any express or implied warranty of fitness for High Risk Activities and will have no liability for any such activities including, but not limited to, not using Software in conjunction with testing under load, which Licensor neither recommends nor condones.
9. E
XPORT CONTROL.
9.1 The Materials are subject to the U.S. Export Administration Regulations, Canadian export laws, as well as the comparable export laws of any and all other nationality that may have jurisdiction over the transaction(s) contemplated by this EULA. Licensee and User may not export, import or transfer the Materials contrary to U.S. or other applicable laws, whether directly or indirectly, and will not cause, approve or otherwise facilitate others such as agents or any third parties in doing so. Licensee and User agree not to use or transfer the Materials for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the U.S. Government by regulation or specific license.
Additionally, Licensee and User acknowledge that the Materials are subject to export control regulations in the European Union, and Licensee and User hereby declare and agree that the Materials will not be used for any other purpose than
B-8
civil (non-military) purposes. The Parties agree to cooperate with each other with respect to any application for any required licenses and approvals; however, Licensee acknowledges that it is its responsibility to comply with any and all export and import laws and that Licensor has no responsibility within the original country of sale. If the Software is identified as an export-controlled item under the applicable export laws, Licensee represents and warrants that it is not a citizen, or otherwise located within an embargoed nation, and that it is not otherwise prohibited under the applicable export laws from receiving the Software. All rights to use the Software are expressly contingent and conditioned upon the previously stated representations and warranties, and a breach of the same shall result in Licensee immediately forfeiting all such rights.
9.2 Compliance with Laws. Each Party agrees to comply with all applicable local, state, and federal laws and executive orders and regulations in the performance of this EULA. Specifically, neither Party nor any of its subsidiaries nor, to the knowledge of the applicable Party, any director, officer, agent, employee, or affiliate of the Party or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and neither Party will directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
10. INDEMNIFICATION.
10.1 [Intentionally Omitted.]
10.2 If the Software, any portion thereof, or Licensee’s use thereof becomes the subject of any claim, suit, or proceeding brought against Licensee that is based upon a claim that the Software infringes the Intellectual Property rights of a third party (“Claim”) or if use of the Software or any portion thereof is enjoined, or if in the opinion of Licensor’s legal counsel the Software is likely to become the subject of a Claim, Licensor may attempt to resolve the Claim by using commercially reasonable efforts to modify the Software or obtain a license to continue using the Software. If in Licensor’s opinion, the Claim, the injunction, or potential Claim cannot be resolved through reasonable modification or licensing, Licensor, at its own election, may terminate this EULA (including all rights granted hereunder) without penalty and refund to Licensee on a pro rata basis any fees paid in advance by Licensee to Licensor.
10.3 [Intentionally Omitted.]
B-9
11. [INTENTIONALLY OMITTED.]
12. [INTENTIONALLY OMITTED.]
13. TERMINATION
13.1 Licensor is entitled to terminate this EULA immediately upon written notice to Licensee if the Licensee:
13.1.1 breaches any covenant, obligation, representation, or warranty under this EULA and fails to cure such breach within thirty (30) days after Licensee’s receipt of written notice thereof from Licensor, provided, however, that if the nature of Anaheim’s obligation is such that more than thirty (30) days are required for its performance, then Anaheim shall not be deemed to be in default if Anaheim shall commence to cure such performance within such thirty (30) day period and thereafter diligently prosecute the same to completion;
13.1.2 [Intentionally Omitted.]
13.1.3 fails to pay any sum due to Licensor within ninety (90) days after the due date set forth on any invoice from Licensor; or
13.1.4 assigns or purports to assign the whole or any part of this EULA other than as expressly permitted by this EULA.
13.2 Either Party may terminate this EULA upon written notice to the other Party if the other Party voluntarily or involuntarily suspends, terminates, winds-up, or liquidates its business; becomes subject to any bankruptcy or insolvency proceeding or its equivalent under applicable law; or becomes insolvent or subject to direct control by a trustee, receiver, or similar authority upon the occurrence of such event and/or may exercise any and all other rights and remedies under this EULA, at law, or in equity.
13.3 Effect of Termination. On and after the effective date of any termination of this EULA, Licensee and User shall cease all use of the Materials. Within ten (10) days of the effective date of termination of this EULA by either Party, Licensee will, at its own expense: (a) return to Licensor (or destroy) all Documentation and other tangible Materials provided by Licensor hereunder; (b) erase and delete all copies of any non-tangible Materials from all computer memories or other electronic devices in Licensee’s possession or control; and (c) upon Licensor’s request, provide a certificate signed by one of Licensee’s officers attesting to such return, destruction, and deletion. Each Party shall remain liable to the other Party for all charges, obligations, and liabilities that accrue or arise under this EULA from any event, occurrence, act, omission, or condition transpiring or existing prior to the effective date of such termination
B-10
14. CONTRACT INTERPRETATION.
14.1 Captions; Section Number. Section and Paragraph numbers and captions are provided for convenience of reference and do not constitute a part of this EULA.
Any reference to a particular Section of this EULA shall be deemed to include reference to any and all subsections thereof.
14.2 Singular and Plural. The use herein of the singular number shall be deemed to include the plural and vice versa, and the use hereof of the masculine shall be deemed to mean the feminine or neuter and vice versa, wherever the sense of this EULA so requires.
14.3 Order of Precedence. In the event of any conflicting terms between this EULA and any Appendix to this EULA below that is expressly applicable to a specific offering, product, and/or service, then such Appendix shall prevail, solely with regard to the specific offering, product, and/or service applicable to that Appendix. For purposes of clarification, the terms that are uniquely applicable to a specific offering, product, and/or service shall not amend or edit the terms of a different offering, product, and/or service.
15. [I
NTENTIONALLY OMITTED.]
16. DRAFTING.
This EULA shall be deemed to have been drafted by all Parties, since all Parties have been assisted by their counsel in reviewing and agreeing thereto (or have chosen not to be so assisted), and no ambiguity shall be resolved against any Party because of its participation in the drafting of this EULA.
17. [I
NTENTIONALLY OMITTED.]
18. [INTENTIONALLY OMITTED.]
19. [INTENTIONALLY OMITTED.]
20. [INTENTIONALLY OMITTED.]
21. DISPUTE RESOLUTION.
21.1 Upon any dispute, controversy, or claim between the Parties, either with respect to the interpretation of any provisions of the EULA, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, or with respect to the performance of the Parties under the EULA, as well as non-contractual claims related to this EULA (a “Dispute”), at the request of either Party, each of the Parties will designate a representative from its senior management who (to the extent practicable) does not devote substantially all of his or her time to performance under the EULA to attempt to resolve such matter.
The designated representatives will negotiate in good faith in an effort to resolve
B-11
the Dispute for a period of thirty (30) days after the date of the notice of the Dispute. In the event that the Parties’ designated representatives are unable to resolve the Dispute within such thirty (30) day period, or any additional extension of time that is mutually agreed upon by the Parties in writing, then either Party may by written notice request arbitration.
21.2 Upon written notice from either Party that a Dispute has not been settled following the resolution process set forth above, then either Party may request arbitration before the American Arbitration Association (“AAA”) in accordance with AAA’s Commercial Arbitration Rules.
21.3 Notwithstanding the foregoing, Licensor may seek injunctive relief to enforce or protect any of its Intellectual Property Rights or any of its interests that may be subject to irreparable harm in any court of competent jurisdiction without reference to the arbitration proceedings set forth herein.
22. [I
NTENTIONALLY OMITTED.]
23. [INTENTIONALLY OMITTED.]
Appx A - 1
APPENDIX A
SUPPLEMENTAL EULA FOR SUBSCRIPTION-BASED SOFTWARE LICENSE
1. LICENSE GRANT.
1.1 The Licensor hereby grants to Licensee a limited license to the Software, inclusive of any Cloud Software, that is identified in Exhibit A for a subscription time period equal to the Term of the Agreement. For purposes of clarification, Cloud Software shall be licensed to Licensee in accordance with this Supplemental EULA, and as further detailed in the applicable documentation.
1.2 Except to the extent expressly stated otherwise in Exhibit A, the License Grant to the Software shall be non-exclusive and non-transferable or assignable, except as expressly authorized by Licensor in writing, limited to the Licensee’s service territory in which the Software was originally accessed, installed, or uploaded, with no ability to sub-license, rent, lease, time-share, or otherwise make available to a third party for its commercial use. Licensor may provide its written consent to allow Licensee to make the Software available to a Third Party Resource only up to the extent that (i) the Software shall only be used on devices that Licensee owns and/or controls, (ii) Licensee has an express written agreement with the Third Party Resource to provide Licensee with internal staff augmentation and/or similar information technology services; (iii) such Third Party Resource’s use of the Software is necessary; and (iv) Licensee remains fully liable at all times for any so-retained Third Party Resource’s use of the Software.
1.3 Licensor’s Reservation of Rights. Licensor reserves all rights in and to the Software not expressly granted to Licensee in this EULA, and no other licenses or rights are granted by implication, estoppel, or otherwise. In addition, and without limiting the foregoing reservation of rights, Licensee’s and User’s use of the Software is subject to the following restrictions:
1.3.1 Licensee and User may not reverse engineer, decompile, or disassemble the Software, except to the extent the foregoing restriction is expressly prohibited by applicable law;
1.3.2 Licensee and User may not modify, or create derivative works based upon, or merge into another program, the Software in whole or in part;
1.3.3 Licensee may only make the Software available for access or use by Users;
1.3.4 Licensee and User may not loan, rent, lease, sublicense, distribute, or otherwise transfer all or any portion of the Software to any third party, except as expressly permitted herein, and understands that any such unpermitted action shall immediately terminate all rights to the Software;
Appx A - 2
1.3.5 Licensee and User may not, directly or indirectly, encumber or suffer to exist any lien or security interest of any nature on the Software or take any action that would cause the Software to be placed in the public domain;
1.3.6 Licensee and User may not remove any proprietary notices, labels, trademarks, or markings on or contained in the Software;
1.3.7 Licensee and User may not disclose, reproduce, transmit, use, distribute, make available, modify, or store the Materials in any retrieval system, in any form or by any means (electronic, photocopying, recording, scanning, or otherwise) for any purpose, except as expressly permitted by Licensor.
1.3.8 Licensee and User must reproduce and include any Licensor copyright notice in any copy of the Software made by Licensee.
1.4 Subject to this EULA, Licensor grants Licensee a limited license to use as many copies of the Software (i.e., number of licenses or “Seats”) as indicated in Exhibit A on single-user computers or on workstations/terminals of a local area network. Each copy of the Software on a single-user computer or on a workstation/terminal of a local area network, whether executing from memory or store on a hard disk or other storage device, must be separately licensed. Any distribution to other persons or companies outside Licensee is strictly forbidden except as expressly authorized by Licensor. If the Software package contains more than one media type, Licensee is licensed to use only one of the media forms except to the extent the Licensor expressly agrees in writing to license more than one media format.
1.4.1 Notwithstanding the provisions of this Section, Licensee may copy the Software or parts thereof as often as is reasonably necessary as part of a regularly scheduled incremental or full system backup. Licensee may copy all or any part of the Documentation as is reasonably necessary for its own internal use and in furtherance of this EULA, so long as all titles, trademark symbols, copyright symbols and legends, and other proprietary markings are reproduced exactly as they appear in the Documentation.
Further, Licensor, in its sole discretion, may provide written authorization for additional scope(s) and method(s) of copying and/or distribution of the Software.
1.4.2 Notwithstanding the provisions of this Section, the Licensor may provide the Licensee express authorization to re-sell or otherwise procure the Software from Licensor for the express purpose of providing to a third- party end user. Any such re-selling of the Software to a third party end user shall only be valid if a) Licensor provides its express written authorization, b) Licensee has satisfactorily completed Licensor’s documentation properly identifying the end user and the applicable end use; and c) such end user has been cleared through Licensor’s due diligence background screen.
Appx A - 3
1.4.3 The limited license to use copies of the Software as provided in Section
1.4 in this Supplemental EULA shall not apply to any of Licensor’s Cloud Software. The scope of Licensee’s access to Cloud Software shall be limited to the number of licensed individual Seats, block of Seats, or other instances as expressly indicated in Exhibit A.
2. WARRANTY.
2.1 Licensor has all right, title, and interest in the Software and Documentation necessary to make the License Grant to Licensee contemplated in this EULA.
2.2 The Software furnished under the EULA will perform in substantial compliance with the written materials accompanying the Software.
2.3 Licensor will not be liable for any breach of the warranties set out herein if and to the extent to which the relevant breach is attributable to:
2.3.1 use of the Software, in any manner or for any purpose, that is not permitted under this EULA;
2.3.2 modification of the Software without the prior written consent of Licensor;
2.3.3 use of the Software inconsistent with requirements in the Documentation;
2.3.4 any negligence on the part of the Licensee relating to the use of the Software; or
2.3.5 any other event or circumstance beyond the reasonable control of Licensor.
2.4 If the Licensee reports in writing to Licensor a Significant Defect, and Licensor is unable to correct it within ninety (90) business days of the date the Licensee reports the Significant Defect, the Licensee may return the Software and accompanying materials, and Licensor will credit the purchase price to Licensee.
2.5 Licensor will replace, at no charge, defective tangible media and product materials that are returned within ninety (90) calendar days of the original shipping date.
2.6 Licensor will provide at no cost to Licensee any applicable updates, system patches, or system repairs when such become available for the licensed Software for the duration of the subscription period.
2.7 THE FOREGOING, TOGETHER WITH ALL EXPRESS WARRANTIES
CONTAINED IN ANY STATEMENT OF WORK HEREUNDER OR
OTHERWISE INCORPORATED IN THE AGREEMENT, CONSTITUTES
AND EXPRESSES THE ENTIRE STATEMENT OF THE PARTIES WITH
RESPECT TO WARRANTIES.
Appx A - 4
3. TERMINATION FOR CONVENIENCE.
Licensee may terminate or not renew the License Grant for its convenience upon the anniversary of the original License Grant. For purposes of clarification, prior to the License Grant anniversary date, no purported termination or non-renewal of the License Grant shall become effective, nor shall Licensee receive any refund or credit of the License Fees (whether in whole or in part).
3.1 EFFECTS OF TERMINATION.
3.1.1 Effective Date of Termination. If either Licensor or Licensee terminates this EULA as provided herein, termination will become effective immediately or on the date set forth in the written notice of termination.
3.1.2 Survival of Contract Provisions. Termination of this EULA by either Party will not affect the provisions regarding Licensee’s or Licensor’s treatment of Confidential Information, the provisions of Section 1.3, the payment of amounts due, or provisions limiting or disclaiming liability, which provisions will survive termination of this EULA for a period of two (2) years.
4. M
ISCELLANEOUS
Any maintenance and support that Licensor may provide to Licensee for the Software will be subject to a separate transaction between Licensee and Licensor.
C-1
EXHIBIT C
MASTER TERMS AND CONDITIONS
1. Applicable Terms and Conditions. “Goods” shall mean Leased Equipment, as defined in the Agreement. All Goods and Services sold or leased by Doble to Lessee will be referred to as “Products”. The terms and conditions stated below apply to all sales and leases of the Products. For the avoidance of doubt, the terms of this Exhibit C are supplemental to the Agreement, and, in the event of any conflicts between the Agreement and this Exhibit C, the terms of the Agreement will control.
2. Prices and Payment Terms. Doble will issue a quotation for each Product request setting forth the price of the Products. Quotations are valid for the period of time specified in the applicable quotation. Prices do not include any federal, state, provincial, or local property, license, privilege, sales, use, excise, import, export, transport, VAT, gross receipts, or other like taxes that may now or hereafter be applicable. Lessee shall be responsible for the payment of all such taxes of any nature whatsoever now or hereafter levied by any governmental authority, except for taxes associated with Doble’s business activities (e.g., Doble’s income taxes or sales or use taxes to purchase materials).
3. [Intentionally Omitted.]
4. Shipping and Delivery. All leased Products will be shipped pursuant to Incoterms 2010 Ex-Works, with the delivery site for all continental United States and Canadian shipments being Marlborough, MA, or other applicable Doble facility (identified at time of order). Notwithstanding the foregoing, the delivery site for all Morgan Schaffer Ltd.
Products shall be LaSalle, Quebec, and the delivery site for all Manta Test Systems Ltd.
Products shall be Mississauga, Ontario unless otherwise identified at the time of order.
Except as specified in this Section, title and risk of loss, including payment of all transportation and insurance cost, pass to Buyer at Doble’s door. Buyer will choose the freight forwarder, customs broker, carrier and means of delivery; provided, however that Doble, in its sole discretion, maintains the ability to reject Buyer’s selection of freight forwarder, customs broker, carrier and means of delivery. If Doble rejects Buyer’s selection of any of the above, Buyer will designate an alternative carrier, broker or means of delivery that is acceptable to Doble. Buyer is responsible for filing any claims with freight forwarders, customs brokers or carriers. Notwithstanding that risk of loss of the Products pass to Buyer at Doble’s door, the Products shall remain the personal property of Doble throughout the lease until fully paid for in cash by Lessee pursuant to a bona fide Doble offer for such Products. Any specifications, drawings, plans, notes, instructions, engineering notices, or technical data of Doble furnished to Lessee shall be deemed to be incorporated herein by reference the same as if fully set forth. Doble shall at all times retain title to all such documents, and Lessee shall not disclose such to any party other than Doble or a party duly authorized by Doble. If there is any situation where the parties desire to ship using any term different from or additional to Incoterms Ex- Works, such agreement must be explicitly set forth in a separate writing and signed by an officer or other authorized representative of Doble. Buyer must expressly declare the final destination of the Products on the applicable purchase order.
C-2
5. Inspection and Acceptance. Lessee will inspect and test any Product within three weeks of delivery. No claims for shortages will be allowed unless shortages are reported to Doble, in writing, within 30 days of delivery. Acceptance will be deemed to have occurred no later than 30 days after shipment of such Product.
6. [Intentionally Omitted.]
7. Warranty.
A. [Intentionally Omitted.]
B. Leased Goods.
i. Definition. Per the terms of the Agreement, Doble may provide a package of rentable equipment and benefits as part of the Services. Such combination of rented equipment and benefits are referred to as Lease, as defined in the Agreement, but the legal and practical nature of the Lease shall only be as expressly set forth herein this Agreement. ii. Perpetual Warranty. For so long as a Lease is renewed by the Parties, Doble shall, to the extent reasonably possible, promptly repair, adjust, upgrade, or replace, as Doble believes the circumstances may warrant, any impaired Leased Goods returned to Doble at Marlborough, Massachusetts or other Doble-designated site as provided in Section 14 of the Agreement. iii. Benefits attributable to any Lease shall be as detailed in Exhibit A. iv. [Intentionally Omitted.]
C. [Intentionally Omitted.]
D. Field and Development Services.
i. Development Services Definition. Any Services offered to Lessee by Doble where Doble will develop hardware, software, or customizations of existing hardware or software, for Lessee are hereby Development Services.
ii. Field and Consulting Services Definition. Any Services offered to Lessee by Doble where Doble must go on site to perform or where Doble is providing consulting Services and such Services are not part of an existing Lease package and do not include Development Services, are hereby Field and Consulting Services.
iii. Standard of Performance. Doble warrants that Development Services and Field and Consulting Services (collectively “FD Services”) will be performed in accordance with generally accepted professional standards.
The FD Services warranty period (“FD Warranty Period”) shall be for a
C-3
period of twelve months from the date of Lessee’s acceptance, but no longer than fifteen (15) months from Doble’s submission to Lessee of a final test report in the case of Field and Consulting Services or, alternatively, Doble’s delivery of final deliverables to Lessee in the case of Development Services, whichever comes first. During the FD Warranty Period, upon prompt written notice of nonconforming Service, Doble will reperform the nonconforming Services at no additional charge.
1. All warranty work will be performed during normal working hours. If Lessee desires expedited warranty service, Lessee agrees to pay overtime for any warranty work performed outside of normal working hours.
2. If Doble is unable or unwilling to reperform the nonconforming Services, or if reperformance does not remedy the nonconformity, Doble and Lessee shall negotiate an adjustment in the price for the applicable nonconforming Services.
3. Doble only warrants that the FD Services were performed in a professional manner. Except as may otherwise be expressly agreed by both Parties in writing, Doble makes no warranty or
representation as to the condition of any electrical apparatus or recommendation as to how Lessee should interpret or utilize any final reports or other deliverables.
4. For FD Services involving installation and/or commissioning of Doble or third party instruments, software, or equipment, Doble’s warranty does not apply in the event that Doble has performed, installed, or otherwise implemented the FD Services upon an electrical apparatus that has changed subsequent to the performance of the FD Services or has been damaged as a result of accident, misuse, abuse or as a result of modification by anyone other than Doble or an authorized Doble representative. iv. Acceptance by Lessee. Doble will submit a test report (“Test Report”) to Lessee upon completion of the FD Services. Within thirty (30) days of receipt of the Test Report, Lessee shall notify Doble in writing of any nonconforming FD Services. Doble shall, within a reasonable time, remedy any specified nonconformity in accordance with the warranty obligations of this Section 7(D). If Lessee does not issue a notice of nonconformity, Lessee’s acceptance of the FD Services shall be considered final as of the thirty-first (31st) day following the date of Doble’s submission of the Test Report.
E. In-House Lab Services.
C-4
i. Materials Laboratory Services Definition. Any Services offered to Lessee by Doble where Doble will perform in-house testing of a Lessee’s submitted oil, dielectric material, or other specimens is hereby “Laboratory Services”.
ii. High Voltage Laboratory Services Definition. Any Services offered to Lessee by Doble’s High Voltage Laboratory where Doble will perform in- house testing or investigations of Lessee’s submitted instruments, parts, materials, or other equipment is hereby “High Voltage Laboratory Services”.
iii. Doble warrants that Materials Laboratory Services and High Voltage Laboratory Services (collectively “Laboratory Services”) will be performed in accordance with generally accepted professional standards.
The warranty period (“Laboratory Warranty Period”) shall be for a period of six (6) months from Doble’s submission to Lessee of the final test report (“Test Report”). During the Laboratory Warranty Period, upon prompt written notice of nonconforming Service, Doble will, where applicable, reperform the Services. If, in Doble’s sole discretion, the results of the reperformance are materially different from the initial results, then the reperformance shall be at no additional charge to Lessee.
However, if reperformance yields materially the same results, the Lessee will be responsible for the purchase of a second testing.
1. All warranty work will be performed during normal working hours. If Lessee desires expedited warranty service, Lessee agrees to pay overtime for any warranty work performed outside of normal working hours.
2. If Doble is unable or unwilling to reperform the nonconforming Services, or if reperformance does not remedy the nonconformity, the Parties shall negotiate an adjustment in the price for the applicable nonconforming Services.
3. Doble warrants only that the Laboratory Services were performed in a professional manner. Except as may otherwise be expressly agreed by both Parties in writing, Doble makes no warranty or representation as to the condition of any submitted samples, parts, instruments, or other equipment or recommendation as to how Lessee should interpret or utilize any Test Reports or other deliverables.
4. All samples, parts, instruments, or other equipment shipped to Doble for Laboratory Services shall be shipped to, and, if to be returned, from, Doble at Lessee’s sole expense and risk of loss.
C-5
iv. Acceptance by Lessee. Doble will submit a Test Report to Lessee upon completion of the Laboratory Services. Within thirty (30) days of receipt of the Test Report, Lessee shall notify Doble in writing of any nonconforming Laboratory Services. Doble shall, within a reasonable time, remedy any specified nonconformity in accordance with the warranty obligations of this Section 7(E). If Lessee does not issue a notice of nonconformity, Lessee’s acceptance of the Laboratory Services shall be considered final as of the thirty-first (31st) day following the date of Doble’s submission of the Test Report.
F. Doble-Hosted Software Services. All software-based services hosted by Doble shall be warrantied as detailed in the applicable end user license agreement for such Product.
G. Other Services. All other Services not detailed in this section shall be warrantied only as detailed in the applicable quotation for such Services.
H. THE FOREGOING LIMITED WARRANTIES OF THIS SECTION ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES NOT
EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED BY
OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED
TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE OR ANY WARRANTY ARISING FROM COURSE
OF DEALING OR USAGE OF TRADE. THIS LIMITED WARRANTY DOES
NOT EXTEND TO ANY PRODUCTS WHICH HAVE BEEN DAMAGED AS
A RESULT OF ACCIDENT, MISUSE, ABUSE, OR AS A RESULT OF
MODIFICATION BY ANYONE OTHER THAN DOBLE OR AN
AUTHORIZED DOBLE REPRESENTATIVE.
i. Any Products supplied by Doble but manufactured by others are warranted only to the extent of the manufacturer’s warranty. Any claim for breach of warranty or other action relating to the Products must be commenced by Lessee within one year after the date of shipment of the Products. ii. Doble warrants that any Product leased by Lessee hereunder will be delivered free of any and all rightful claims, demands, liens, or encumbrances. In the event of claim regarding defect to title, Lessee shall promptly notify Doble, and Doble, at its expense, will defend the title to any affected Product or part and if unsuccessful will promptly provide to Lessee at no cost, replacement parts or equipment that complies with this warranty.
8. No Rights in Doble’s Trademarks. Lessee shall not have any ownership right, title or interest, express or implied, in the intellectual property, trademarks, trade names, service marks, logotype, advertising and/or designs, markings or other commercial symbols associated with the Products, including but not limited to the name “Doble” (collectively,
C-6
“Trademarks”) and expressly acknowledges Doble’s exclusive right, title and interest in the Trademarks.
9. Patent Infringement.
A. In the event such Product is held to constitute infringement, and the use of the Product is enjoined, Doble shall, at its option: (1) procure for Lessee the right to continue using the Product; (ii) replace it with non-infringing Product; (ii) modify it so it becomes non-infringing; or (iv) refund the price paid by Lessee for the Product and direct the Lessee to return or destroy the Product, at Doble’s expense.
B. Doble’s liability for patent infringement shall not apply to: (i) any portion of Products supplied according to any custom design specified or required by Lessee; or (ii) any Modifications of or to the Product or any combinations of the Product with another product not furnished by Doble.
10. [Intentionally Omitted.]
11. Delay or Termination.
A. Delay requested by Lessee. Lessee may request that the delivery date for an order or for certain Products within an order be delayed or rescheduled. If Doble accepts such request and delays or reschedules shipment or performance, Lessee agrees to pay Doble for any fees Doble may charge and/or costs Doble incurs for accepting such delay or rescheduling. Any order held, delayed, or rescheduled beyond a reasonable period of time may be treated by Doble as a Lessee termination under Section (B) below.
B. Termination of Orders by Lessee. Purchased Products cannot be returned, and orders once accepted cannot be cancelled, without Doble’s prior specific written consent (and at Doble’s sole and absolute discretion). Goods authorized for return and/or Doble approved cancellation orders shall be subject to handling, restocking, and/or cancellation charges, which will include but not be limited to:
direct costs; overhead and other costs that are allocable or apportionable under reasonable accounting practices to the order; storage fees; handling and transportation costs; and material or personnel expenses of Doble. Payment for restocking and cancellation charges shall be made within 30 days from date of invoice. Lessee shall be responsible for any loss related to or any additional fees that may become applicable due to Lessee’s failure to return any Goods to Doble with a clearly marked, Doble-issued, return merchandise authorization (“RMA”) number.
C. [Intentionally Omitted.]
D. Termination of Orders by Doble. For any material breach of these terms and conditions by Lessee, Doble shall have the right to cancel any order without penalty upon 15 days’ written notice to Lessee.
C-7
12. Lessee’s Premises. If in connection with the sale of the Products, Doble is required to perform any work on Lessee’s premises, Lessee will be solely responsible for isolation and disconnection of any equipment or apparatus to be tested, if applicable. Lessee will be responsible for the supervision, control, health, and safety of Lessee’s personnel.
Lessee will comply with and ensure that its personnel are properly trained and licensed under all laws and regulations relating to health, safety, and/or the environment that are applicable in the Lessee’s country and jurisdiction, including federal, state, and local laws (or international equivalent) and any revisions to such laws or successor legislation. In the event Lessee fails to provide a working environment that meets the requirements set forth herein, such failure gives Doble the right to terminate any such order in accordance with Section 11(D).
13. Product Notices. Lessee shall provide all direct users or purchasers of any Doble equipment (including its employees) with all Doble supplied product notices, warnings, instructions, recommendations, and similar materials.
14. [Intentionally Omitted.]
15. [Intentionally Omitted.]
16. Compliance with Laws. Each Party agrees to comply with all applicable local, state, and federal laws and executive orders and regulations in the performance of this Exhibit C.
Specifically, neither Party nor any of its subsidiaries nor, to the knowledge of the applicable party, any director, officer, agent, employee or affiliate of the Party or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and neither Party will directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
17. [Intentionally Omitted.]
18. [Intentionally Omitted.]
19. Confidentiality. Doble will be permitted to retain technical data for the sole purpose of creation of statistical models showing representative characteristics of operating data, but without any specific links or identification to the Lessee, the Lessee’s assets, or configuration in which the asset was originally linked.
20. [Intentionally Omitted.]
21. [Intentionally Omitted.]
22. [Intentionally Omitted.]
23. Timely On-Site Performance by Doble. Any timely on-site performance by Doble is contingent upon Lessee providing Doble with: (i) an appropriate work area; (ii)
C-8
unrest
ricted access to Lessee’s assets (which will be isolated and disconnected by Lessee, if applicable); (iii) all required technical information and data, including drawing approvals, and required commercial documentation; (iv) removal or remedy of obstructions to or interruptions in the performance of the Services; (v) any special instrument necessary for the performance of the Services as specified in the quotation; and (vi) reasonable, undisruptive support of Lessee’s employees, as needed.
24. [Intentionally Omitted.]