Tropos SPECIFICALLY DISCLAIMS ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES (INCLUDING LOST PROFITS) WHICH MAY RESULT FROM THE USE OF PRODUCTS PURCHASED HEREUNDER. This limited warranty extends only to you as original purchaser unless otherwise agreed upon in writing by Tropos. (b) The foregoing warranty shall not apply if the defective Hardware (i) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling or use contrary to any instructions issued by Tropos, (ii) has been repaired or altered by persons other than Tropos, (iii) has not been installed, operated, repaired and maintained in accordance with the Documentation (iv) has failed due an Act of God, including but not limited to fire, flood, tornado, earthquake, hurricane or lightning or (v) has been used with any third party software or hardware which has not been previously approved in writing by Tropos. In addition, the foregoing warranty shall not apply to Hardware (i) marked or identified as "sample," (ii) loaned or provided to you at no cost, or (iii) which are sold "as is."
(c) If during the Warranty Period: (i) Tropos is notified promptly in writing upon discovery of any defect in the Hardware, including a detailed description of such alleged defect, (ii) such Hardware is returned, transportation charges prepaid, to Tropos' designated manufacturing facility in accordance with Tropos' then-current return procedures, as set forth by Tropos from time to time, and (iii) Tropos' inspections and tests determine that the Hardware is indeed defective and the Hardware has not been subjected to any of the conditions set forth in Section 4(b) above, then, as your sole remedy and Tropos' sole obligation under the foregoing warranty, Tropos will, at Tropos' option, repair or replace without charge the defective Hardware. Any Hardware that has either been repaired or replaced under this warranty shall have warranty coverage for the longer of ninety (90) days or the remaining warranty period. Replacement parts used in the repair of Hardware may be new or equivalent to new.
(d) Software Warranty. Tropos warrants that the Software will substantially conform to its published specifications for a period of ninety (90) days from the date of shipment of the Hardware from Tropos. Your sole remedy and Tropos' sole obligation under the foregoing warranty shall be for Tropos to use commercially reasonable efforts to correct any substantial nonconformity of the Software reported in writing by you during the warranty period. The foregoing warranty shall not apply to any defect in the Software that is caused by (i) the use or operation of the Software in an environment other than that intended or recommended by Tropos, (ii) modifications to the Software not made or authorized by Tropos, (iii) third party hardware or software, whether provided by Tropos or any third party or (iv) your failure to implement all software patches, updates or releases provided in connection with this Agreement. In addition, the foregoing warranty shall not apply to any Software which has been used with any third party hardware or software.
(e) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, TROPOS
MAKES NO OTHER WARRANTIES AND EXPRESS DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY
HARDWARE, SOFTWARE OR OTHER PRODUCTS OR SERVICES PROVIDED IN
CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION Elster Solutions, LLC
Trapos Standard Technical Software Support Agreement
EXHIBIT!
ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. TROPOS ASSUMES NO
RESPONSIBILITY OR RISK FOR ANY USE OF THE PRODUCTS AS A SYSTEM OR SERVICE OR THE USE OF THE PRODUCTS IN GENERAL. TROPOS DOES
NOT WARRANT THAT THE INFORMATION, PRODUCTS, PROCESSES, AND/OR
SERVICES AVAILABLE THROUGH THE USE OF THE PRODUCTS WILL BE
UNINTERRUPTED, ACCURATE, COMPLETE, USEFUL, FUNCTIONAL, OR ERROR FREE. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR
THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT. This disclaimer of warranty constitutes an essential part of this Agreement.
(f) Notwithstanding anything herein to the contrary, Tropos makes no warranty with respect to any third party hardware or software products provided under this Agreement. Your sole remedy with respect to such third party products shall be pursuant to the original manufacturer's or licensor's warranty, if any, to you, to the extent permitted by the original manufacturer or licensor.
5. Limitation of Liability. IN NO EVENT SHALL TROPOS OR ITS SUPPLIERS BE
LIABLE TO YOU OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF
SUBSTITUTE PRODUCTS OR SERVICES, LOST REVENUES, PROFITS, DATA OR
BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN
CONNECTION WITH (A) THE USE OF THE PRODUCTS AS A SYSTEM OR SERVICE
OR THE USE OF ANY PRODUCT INCLUDING ANY COSTS DUE TO
INTERRUPTION OR FAILURE OF SERVICE OR (B) THIS AGREEMENT, HOWEVER
CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE). TROPOS
TOTAL AND CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION
WITH ANY PRODUCTS PURCHASED BY YOU HEREUNDER SHALL IN NO EVENT EXCEED THE PURCHASE PRICE PAID BY YOU FOR SUCH PRODUCTS. THE
LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF TROPOS OR
ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6. Term and Termination. This license is effective until terminated. You may terminate this license at any time by destroying the Software and the Documentation and the permitted backup copy of each. This license automatically terminates if you fail to comply with its terms and conditions. You agree that, upon such termination, you will destroy and permanently erase from any hardware all copies of the Software and the Documentation, or return the original Software and the Documentation to Tropos, together with any other material you have received from Tropos in connection with the Software.
7. Export: You acknowledge and agree that the Software, Documentation, and any Tropos Product which is the subject of this Agreement, may be controlled for export purposes. You agree to comply with all United States export laws and regulations including, but not limited Elster Solutions, LLC
Tropos Standard Technical Software Support Agreement
EXHIBIT I
to, the United States Export Administration Regulations, International Traffic in Arms Regulations, directives and regulations of the Office of Foreign Asset Control, treaties, Executive Orders, laws, statutes, amendments, and supplement thereto. You assume sole responsibility for any required export approval and/or licenses and all related costs and for the violation of any United States export law or regulation. You acknowledge that export of the Software, Documentation, and any Tropos Product, in whole or part, contrary to United States law is prohibited. You agree that no part of the Tropos Product, either whole or in part, is being acquired for shipment, transfer, or re-export, directly or indirectly, to proscribed, embargoed, or prohibited countries or their nationals, denied destinations, nor for nuclear activities, chemical or biological weapons, or missile projects. Proscribed countries, destinations, and people are set forth in the United States Export Administration Regulations, and the Office of Foreign Asset Control's Specially Designated Nationals list, and are subject to change without further notice from Tropos Networks, Inc.
8. Restrictions. The Tropos Products and accompanying and related documentation including manuals and technical data, delivered pursuant to this Agreement are commercial within the meaning of applicable civilian and/or military Federal acquisition regulations and any supplement thereto. The Tropos Products were developed fully at private expense. If the user of these Tropos Products, or anyone of them, is an agency, department, employee, or other entity or quasi Government entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Product is controlled and restricted by the terms, conditions, and covenants contained in this Agreement. All other such use is prohibited. In accordance with Federal Acquisition Regulation 12.212 for civilian agencies, and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies, Software delivered pursuant to this Agreement is commercial computer software and the use of that Software is further controlled and restricted in accordance with the terms herein.
9. Confidentiality and Other. The Tropos Product, the Software, and the Documentation contain certain information that is confidential and of substantial value to Tropos and may not be disclosed to any third party. This License Agreement shall be governed by and construed under the laws of the State of California and the United States of America, without reference to conflicts of laws principles. This Agreement represents the entire agreement concerning the program between you and Tropos, and it supersedes any prior proposal, representation, or understanding between the parties.
YOU ACKNOWLEDGE THAT YOU rIA VE READ THE TERMS OF THIS LICENSE AND
AGREE TO BE BOUND BY ITS TERMS UPON INITIAL USE OF THE PRODUCT Elster Solutions, LLC
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EXHIBIT I
Problem Severity Definitions
Severjty Severity Description Level .
Severity 1 Problem causes a complete loss of service in the production environment; no known (SI) workaround exists; work cannot reasonably continue and work is halted. Tropos and client will commit all necessary resources around the clock to resolve the situation.
Operation of an existing network is severely degraded, or significant aspects of client Severity 2 business operations are negatively affected by inadequate performance of Tropos (S2) products. Tropos and client will commit all necessary resources during normal business hours to resolve the situation.
Severity 3 Operational performance of the network is impaired while most business operations (S3) remain functional. Tropos and client will commit the required resources during normal business hours to resolve the situation.
Feature Enhancement request for a new functionality or requests for additional existing Request products or services.
Response Requirements
, .. VENDO~ . .. ····· •.. ·,Stat~s .. '.... hlteri.ti~ix:)v' ............. , . :r.';velof Severity Response ...• JomtActiilD ~esOI~!i0ll .', .• " ..... , . ,. Plan •..•..• '. ··•··· .. Updates· ....... ·. Level Requirements Target .* ... < . ' ......... ,... '.' 1:~rget* .• ·. .. Effon .... ' ,...... .. '.
Within 24 hours, fix Within 24 hours, fix
Per Action Plan problem or provide problem or provide 7 by 24 I Within I hr Within 4 hrs -no less than workaround. Work to workaround. Work effort until daily downgrade to to downgrade to Interim Fix
Severity2 Severity2
As agreed
to in
Within 2 hr M- Per Action Plan Provide a Action
2 F 8-5, otherwise Within I - no less than N/A solution/fix within Plan or a next business business day twice per week 20 days mInImUm day. ofM-F 8-5
continuous
effort
Within 30 days,
Within 3 within 15 Per Action Plan provide a solution or As agreed 3 business days business - no less than N/A a statement to in days once per week regarding the Action
disposition of the Plan
problem.
Review and Coordinate Within 30 days of
provide and escalate Engineering
Feature Engineering as required N/A N/A Response, publish 8X5 Request Response within following disposition of 30 days Engineering request (withdrawal
Response or schedule)
.. * TIme frames defined are deSIred goals on average and are InItiated upon receIpt of the escalatIOn Elster Solutions, LLC
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EXHIBIT I
MKT
CITY OF SANTA CLARA
AGENDA MATERIAL ROUTE SHEET
Council Date: December 7, 2010
SUB,TECT: Approval of an EnergyAxis Management System Contract with Elster Solutions, LLC. For the Purchase and Implementation of an Advanced Metering and Utility Communications Infrastructure PUBLICATION REQUIRED:
The attached Notice/Resolution/Ordinance is to be published __ time(s) at least __ days before the scheduled meeting/public hearing/bid opening/etc., which is scheduled for _________ , 2010 AUTHORITY SOURCE FOR PUBLICATION REQUIREMENT:
Federal Codes:
Title ___ ~ __ U.S.c.
(Titles rulll through 50)
Federal Regulations:
California Codes:
Code ___ ~_~c-c-_ 9' . ..."...~ ___ _
(i.e., Governmeltt, Street alUl Highway, Public Resources) California Regulations:
Title C.F.R. 9' _____ _ Title ___ California Code of Regulatiolls 9' __ _ (Titles run 1 through 50) (Titles fUlli through 28)
City
City Charter § _____ (i.e., 1310. Public Works COlltracts. Noticepublishetl at least once at least tell days before bid opening) City Code 9' _____ _
I. As to City Functions, by
2. As to Legality, by
ffice / CAO Assignment No 10.1277
3. As to Environmental
Impact Requirements, by
4. As to Substance, by
Director of Planning and Inspection
S:\Agenda Report Processing\FORMS AND INFORMATION\Routc Sheet for Agenda Matcrial.doc Rev.Date 05/05/09