EXHIBIT C
ENERGYAXIS® MANAGEMENT SYSTEM (EA_MS)
SYSTEM MAINTENANCE AGREEMENT
THIS SYSTEMMAINTENANCEAGREEMENT(this "Agreement") is made and entered into effective thi~"t'tttay ofvu:M-: , 2014 ("Effective Date") by and between Elster Solutions, LLC, a Delaware limited liability company, with offices at 208 S. Rogers Lane , Raleigh, NC 27610, USA, ("Elster" or "Licensor") , and City of Santa Clara California , a chartered California municipal corporation , with offices at 1500 Warburton Avenue , Santa Clara, CA 95050 ("City" or "Licensee").
Licensor will provide system maintenance services ("System Maintenance Services") for the Program licensed to Licensee pmsuant to that certain EnergyAxis Management System License Agreement (the "System License Agreement") executed between the parties and described herein and in Appendix 1 of the System License Agreement. Capitalized terms in this System Maintenance Agreement not otherwise defined shall have the meaning set forth in the System License Agreement . The terms and conditions of the System License Agreement shall govern Licensee's use of the Program . 1 DEFINITIONS
Casual Consulting
Technical Support
Error
Includes telephone and email system support that does not require access to the production , test or backup system, and is limited to information readily accessible to tech support personnel, such as operation manuals and similar
documentation including:
a) General supp01t regarding proper utilization of
the applicable Program
b) Assistance with Licensor's user docwnentation
and technical manuals provided with the
Program
c) Guidance on the Program's intended, normal use
Includes supp01t that may require more experienced technical support personnel, system analysis, and access to the
production, test or backup system including:
a) Technical assistance specific to the operation of
the Program
b) Diagnosis and troubleshooting
c) Attempted replication of errors reported by
Licensee. Licensor shall use commercially
reasonable effo1ts to resolve
replicated errors by providing: (1) a reasonable
work-around; (2) a change to the Program code;
or (3) an action plan for resolving the error.
d) Remote installation of the applicable Program
and Software /Firmware Upgrades
e) Over the Air (OTA) upgrades ofEnergyAxis
network devices, meters and nodes , or
upgradeable devices.
For pw-poses of this System Maintenance Agreement, an
"error" shall mean either:
Exhibit C - System Maintenance Agreement April 23, 2014 2 TERM AND RENEWAL
a) a material nonconformity to the then-current
applicable specifications; or
b) a defect which materially impairs use.
The term ofthis System Maintenance Agreement shall begin on the Effective Date and shall continue until December 31st of the then current calendar year (the "Initial Term"). Thereafter , this System Maintenance Agreement shall automatically renew for successive one-year terms (each a "Renewal Term") unless the Agreement is terminated by either party by written notice to the other party sixty (60) days prior to the end of the then-current term with such termination to be effective upon completion of such term.
To ensure that the Agreement meets the needs and expectations of Licensor and Licensee, the parties agree in good faith to review this Agreement not less than annually and if warranted and mutually agreed upon , to make adjustments in the Agreement , including prices , to be consistent with evolving industry practices and the needs of the paities.
If for any reason this Agreement should lapse, the Licensee may reinstate lapsed supp01t and maintenance upon payment of 150% ofthe support and maintenance fees in an-ears, and all costs invoiced by Licensor on a time and materials basis for updating Licensee's Program to the then-current version . 3 SUPPORT SERVICES
System Maintenance Services shall consist of the following:
3.1 Software Updates
Software Updates include:
a) Major Release - Softwai·e Upgrade that includes significant functional changes . Major Releases are identified by a change in the whole 11U111ber ofthe Application version number (i.e ., 2.0.0 .0 to 3.0.0.0). Software upgrade fees will apply to Major Releases. b) Minor Release - Softwai·e Update that includes small functional changes . Minor releases are identified by a change in the first decimal of the Application version nU111ber (i .e. , 2.2 .0.0 to
2.3.0.0). Minor releases occur as needed to meet individual product mai·ket needs. c) Maintenance Release - Software Update that includes fixes for known issues or operational problems which cause the application not to perform as designed. Maintenance Upgrades are typically identified by a change in the second decimal of the Application version number (i.e.,
2.2.2.0 to 2.2.3.0). Maintenance Upgrades ai·e released as needed, typically 3 to 6 months apait.
d) Patch - Software Patches include fixes for a known issue or operational problem which cause the application not to perform as designed. Patches are identified by a change in the third decimal ofthe Application version number (i.e ., 2.2.2 .2 to 2.2.2.3) . Patches are released as needed. Patches target only portions ofthe softwai·e files, and do not require a full software upgrade .
Software Updates include distribution of one ( I) copy of any corresponding standai·d documentation updates on CD or DVD .
Updates apply to the program and modules originally licensed.
Licensor wi 11 specify any Third Party Software that Licensee is required to have for each Software Upgrade .
To the extent Softwai·e Updates contain new Third Patty Software, Licensee agrees to comply with all license terms associated with such software . Licensor shall notify Licensee of new Third Patty Software when Softwat·e Updates are distributed, at1d Licensee's installation and use of Softwai·e Exhibit C - System Maintenance Agreement 2 April 23, 2014 Updates shall be deemed Licensee's acceptance of Third Party Software license terms, and Licensee's agreement to be bound by such license terms . To the extent Third Party Software license terms are inconsistent with the terms of this System License Agreement , Third Party Software license terms shall control with respect to the Third Party Software .
3.2 Firmware Updates
Firmware updates include gatekeeper and endpoint node updates (REX , A3 NIC , water module , gas module, etc.) for application firmware and/or radio firmware , and will be applied by Bister as required . Firmware Updates are categorized as:
a) Firmware Functional Upgrades - Firmware Functional Upgrades include significant functional changes . Functional upgrades are typically identified by a change in the first number ofthe firmware version number (e.g., 2.0 to 3.0). Firmware Functional Upgrades may incur an upgrade fee and/or hardware change as determined by Elster b) Firmware Maintenance Updates - Firmware Maintenance Updates are primarily bug fixes.
Minor functionality changes may also be included. Maintenance Update s are typically identified by a change in the second decimal ofthe firmware version nwnber (e.g. , 2.0 to
2.1).
3.3 System Support
System support is available for the latest commercially released version of the Program (N), and for the previous commercially released version of the program (N-1 ). With each new release of the Program, the version purchased by the Licensee will age by (-1) .
Versions N and N-1 are fully supported. Vers ion N-2 signifies the Program has reached end of life , and system support will be limited to Severity 1 issues defined in Appendix C-3 while allowing Licensee time to complete Program upgrades. Version N-3 signifies the Program has reached end of life suppmi, and thus no longer suppo1ied by the Licensor. Licensee must upgrade its Program to continue system suppmi.
The parties may amend this System Maintenance Agreement to add additional Modules licensed by Licensee, subject to additional System Maintenance Fees and terms. Licensor reserves the right to commercialize uniquely new featw-es, endpoints and interfaces as optional add-ons to its base system featmes. Additional system maintenance fees may apply unless the feature or interface is part of a contractual scope jointly agreed to by the parties.
Suppmi and maintenance of third-pa1iy software , such as the computer operating system , must be obtained from the supplier and is the responsibility of the Licensee. Licensor will provide support for embedded software within the EA_MS Program , subject to third-party support terms to which Elster is party .
Licensor offers the following levels of Support.
a) 9 x 5 Support
Includes Casual Consulting and Technical Support Monday through Friday from 8:00 AM to 5:00 PM , Eastern Standard Time or Eastern Day light time as applicable , except for Licen sor holidays .
b) 12 x 7 Support
Includes Casual Consulting and Technical Support seven days a week from 8:00 AM to 8:00 PM, Eastern Standard Time or Eastern Daylight time as applicable, including Licensor holidays. Alternate homs are available for an additional fee. c) 24 x 7 Support
Includes Casual Consulting and Technical Suppmi from 8:00 AM to 8:00 PM , and technical support 8:00 PM - 8:00 AM Eastern Standard Time or Eastern Daylight time as applicable , including Licensor holidays.
Exhibit C - System Maintenance Agreement 3 April 23, 2014 d) Emergency On-Call Support
Available for a Severity 1 issues, as defined in Appendix C-3 , that occur outside of contracted support hoLU"s for customers on 9x5 or 12x7 suppott plans. Emergency suppott excludes upgrades and other requests made solely for the business convenience ofthe Licensee.
Emergency on call support is available 7 days a week, including Licensor holidays.
Emergency calls are directed to a Licensor support representative. If the support representative is unavailable to accept the call, callers will be directed to voice mail, and Licensor's support representative will return the call within one (I) hom ofreceipt . Retmned calls will be charged per fees described in Appendix C-1 .
Alternate hours are available for an additional fee. Unanticipated office closw-es due to conditions of force majeure or other unforeseen events that affect the Licensor's availability sched ule will be communicated to the Licensee as soon as reasonably possible.
Licensor .shall use commercially reasonable effotts to resolve replicated errors by providing: ( 1) reasonable work a.rounds; (2) a change to the Program code; or (3) an action plan for resolving the error. Case resolution and response times will depend on the severity of the issue as defined in Append ix C-3 .
3.4 Selected Support Level
Licensee must indicate the support level selected for the Initial Term of the System Maintenance Agreement by placing an "X" in the appropriate box of the "Selected Support Level" table which follows the signatw-e block ofthis Agreement. To change suppo1t levels , Licensee must request such change in writing no later than October 1st ofthe then-cw-rent year. Licensor will approve or reject the request in writing no later than December 1st. If approved, Licensor will invoice Licensee for the new level of suppott, payable by December 31st of the then current year, and all approved changes will be effective as of January 1st of the next calendar year. Any change in suppo1t levels will be added as an amendment to the Selected Support Level table and to Appendix C-4 .
3.5 Support Contact Information
Casual Consulting and Teclmical Support are available via:
a) Toil-Free Number with Customer Specific PIN
The Energy Axis Software Support line , 866-554-9007 or +919-250-5717, is available 24 hours a day 7 days a week . Ifa call is received during Licensee's support hours and a support engineer is not available to take the call, the call will be routed to a voice mailbox. The next ava ilable suppoti engineer will return voice messages. Calls received outside ofLicensee support how-swill be automatically routed to a voice mailbox. Messages received outside suppo1i hours will be returned the following suppo1t day. b) Email
Email may be sent to Energy [email protected]. Ema ils sent to this address are automatically routed to support engineers who will respond during Licensee's suppoti hours.
Emails received outside ofLicensee suppo1t hours will be returned the following suppoti day. c) Web Portal
The Elster Support System (ESS) User Potial (http://ElsterSupport.com) can be accessed using individual login IDs provided by Technical Support. The User Portal is available 24 hours a day, 7 days a week.
3.6 On-Site Support Services
Prior to flll"nishing on-site suppo1i, the Licensee must present the Licensor with a written request for on-site suppott services, and the terms and nature of the services to be provided must be defined in a written Scope ofW ork signed by the patties
Exhibit C - System Maintenance Agreement 4 April 23, 2014 System Support as detailed in Section 3.3 does not include On-Site Support. For pmposes of this Agreement, "On Site Support" shall occur when:
a) Licensor is requested by Licensee to arrive at a Licensee location to provide support and/or consultation services;
b) Licensor is contacted outside of contracted support hours and must, following written approva l from the Licensee, travel to another location (including Licensor's site) to complete the required services; and
c) Licensor is contacted during normal contracted support hours and must, following written approval from the Licensee, travel to a separate location to complete the required services.
Any travel to Licensee's site requires prior approval ofLicensor management. Any On-Site Support provided at the request or approval of Licensee shall be billed on an hourly basis at the then-current labor rates reflected in Appendix C-2 , plus reasonable travel and living expenses including a 10% administrative fee. For travel outside the continental United States, travel time to site is also charged on an hourly basis per rates in Appendix C-2 . On-Site Support services will be provided under Licensor's then-current standard service terms.
3.7 Other Available Services
The following services are not provided under this System Maintenance Agreement but are available for an additional fee:
a) Distribution or maintenance of Program Modules not listed in Appendix B-1 of the System License Agreement
b) Interpretation of Program results
c) Supply oftypical or representative data
d) Assistance with computer hardware and peripheral questions not related to Program use e) Data debugging and/or correcting
f) Services necessitated as a result of any cause other than ordinary and proper use ofthe Program by Licensee, including but not limited to neglect, abuse, unauthorized maintenance, or electrical, fire, water, or other damage
g) Services resulting from the failure ofLicensee to provide a suitable environment for the Program or associated equipment
h) Services relating to problems caused by modifications in any version of the Program not made or authorized by Licensor
i) Services resulting from the combination of the Program with other programming or equipment, and to the extent such combination has not been approved in writing by Licensor. j) Services relating to problems caused by commw1ications facilities and infrastructure (telephone, etc.)
3.8 Resolution ofHelpdesk Issues
Licensor's Technical Support will contact Licensee to ensure that a problem or issue has been resolved to Licensee's satisfaction before closing the problem report. In instances where Licensor has resolved the problem to Licensor's satisfaction but has been w1able to confirm that the supplied solution is satisfactory to Licensee, Licensor will assume such solution to have been satisfactory and close the case after thirty (30) working days unless Licensee notifies Licensor to the contrary. 4 FEES
System Maintenance Fees are calculated based on the calendar year. The annual System Maintenance Fee calculation guidelines are set forth in Appendix C-1 , attached hereto. To facilitate easy look.up , Appendix C-4 summarizes the then-current applicable maintenance fees incorporating maintenance fees for the original purchase ofthe program and all amendments due to incremental modules or services purchased Exhibit C - System Maintenance Agreement 5 April 23, 2014 thereof. Upon the Effective Date of this Agreement or on a date as specified in an associated system contract, Licen see shall pay the then-cw-rent ammal System Maintenance Fee, pro-rated based on the nw-nber of months remaining in the calendar year from the Effective Date of this Agreement. Thereafter, annual System Maintenance Fees will be invoiced in October of each year , with payment for the next year's System Maintenance due no later than December 31 of the current year . On Site Support services and any other Additional Services will be billed at the end of the month in which the services are provided. Fees for Modules licensed separately by Licensee shall be charged at pmchase. Except as specifically set forth in this System Maintenance Agreement , all invoices are due net thirty (30) days from the date of invoice. Licensor will assess a late payment charge on any amount which remains unpaid after the due date, computed at the rate equal to the lesser of one and one-half percent ( 1.5%) per month or the maximum amount permitted by law on the unpaid amount for each month that such amount remains unpaid. This late payment charge shall be in addition to any other remedies Licensor may have at law or in equity. A 11 System Maintenance Fees are in US dollars. 5 TERMINATION
Either party may upon written notice to the other party , terminate this Agreement and any license granted hereunder at any time and for any reason , including nonpayment or other material breach that is not cured within thirty (30) days following written notice thereof.
Within ten (10) days after the date oftennination, Licensee will cease use ofthe Software and Third Party Software and return , or at Elster's direction, destroy all originals and copies, in whole or in part and in any form, of any Software or other Bister fmnished documentation in the Licensee's possession , and will certify to the foregoing to Elster in writing
6 LIMITATION OF LIABILITY
The maximum liability of Licensor for any damages sustained by the Licensee under this System Maintenance Agreement shall in no circwnstance exceed the amount of the annual maintenance fee payable by the Licensee to the Licensor for the then-current year. Neither Licensor nor its licensors of Third Party Software shall in any event be liable to Licensee for loss ofrevenue, profit, anticipated profit or indirect, incidental, special or consequential damages, including but not limited to , any losses to Licensee resulting from lost computer time or the destruction or damage of records , or any claims or demands made against the Licensee by a third party.
7 WARRANTY DISCLAIMER
Except as expressly provided herein, the Licensor does not make any representations or warranties under this System Maintenance Agreement whatsoever whether statutory, expressed or implied, including but not limited to warranties of merchantability and fitness for a particular pmpose, and any warranties arising from course of dealing or usage of trade. No action, regardless of form, arising out of the transactions under this System Maintenance Agreement may be brought by Licensee more than two (2) years after the cause of action has accrued .
8 LICENSEE OBLIGATIONS
During the term of this System Maintenance Agreement , Licensee shall:
a) Obtain , install and maintain , and provide at no cost to Licensor , direct FTP and fast VPN access (access via Citrix, WebEx , VNC, etc. not acceptable) to all meters, gatekeepers, and eve1y production, backup and test Management System servers tmder support to allow Licensor to perform System Maintenance for the Program from Licensor's facilities in North Carolina . Reasonable allowance will be made to adhere to Licensee's corporate security administration and monitoring policies. However , during periods when Licensor has access to ~xhibit C - System Maintenance Agreement 6 April 23, 2014 the Management System servers, access will be at the administrator level. Reasonable allowances will be made to ensure that Licensee has monitoring abilities for all activities performed on Licensee's systems. No actions will be taken on any Licensee system without Licensee's permission.
b) Allow Licensor to install as part of its standard support a Troubleshooting Tool with daily access to Licensee's secw-e FTP site to transfer data, thus enabling Licensor's suppmt perso1mel to perform maintenance on the Licensee system effectively. Without use ofthe Troubleshooting Tool response and resolution times may be affected. c) Ensure that only persmmel properly trained in the operation and use ofthe Program and its associated equipment call Licensor for direct phone suppo1t and that such personnel have sufficient access and computer time when using such service in order to implement the corrections suggested by Licensor.
d) Allow Licensor to install all Software Upgrades within 60 days of delivery of same; provided, however, that Licensee may delay a Software Upgrade in the event of force majeure or in the event of delays beyond the control ofLicensee or Licensor in corollary upgrades to third party software or equipment. Licensee shall install or allow the install of the Software Upgrade immediately upon the cessation ofthe cause of delay. Reasonable delays will be accommodated to avoid impacts on Licensee's business operations, resource availability and/or IT policy compliance.
e) Perform and install all diagnostic activities and routines recommended by Licensor before requesting On-Site Support.
f) Ensure that all installed Elster Products (meters, gatekeepers, IP AxisLink, etc.) that have Longitude and Latitude attributes contain the correct geographic coordinates.
Troubleshooting will not be performed by Elster for devices that do not have corresponding geographic information in the Energy Axis Management System. g) Ensure a proper Program environment is maintained and that Licensee's personnel who have access to the Program are properly trained in the operation and usage of the Program and the associated equipment.
h) Provide adequate safeguards for the protection ofLicensee's data and files while System Maintenance is being performed on the Program.
i) Issue any pw-chase orders that might be required by Licensee's business processes to honor the payments obligated by this Agreement.
j) Maintain the Management System servers consistent with industry standards on end oflife planning for server systems. Licensor's general recommendation is that Licensees plan for server replacements on a 3 year cycle to consider hardware and OS obsolescence and to provide latest generation servers to suppo1t new featw-es provided in Pro gram releases provided as a part of this Agreement.
k) Maintain the Supported System and the operating system software defined in Appendix B-1 ofthe System License Agreement. Licensor will specify the third party software and version thereof required for each Software Upgrade or release.
1) Licensee shall monitor overall system performance such as disk space, CPU, memory usage, etc
m) Prevent the unauthorized use or copy ofbinary data used in virtual deployments ofEA_MS systems ..
9 DATA BACKUP
Licensee shall be solely responsible to ensure that all of its files and data are adequately duplicated or documented , and Licensor shall in no way be responsible for Licensee's failure to do so, nor for the costs or expenses of reconstructing data which are lost, destroyed or otherwise damaged or rendered useless Exhibit C - System Maintenance Agreement 7 April 23, 2014 during the course of or as the result of the performance of any services under this System Maintenance Agreement.
10 CONFIDENTIALITY
Each Party (the "Receiving Party") shall maintain in strict confidence any and all proprietary and confidential information about the business, operations or customers of the other Party or any of their affiliates which it acquires in any form from the other Party (the "Disclosing Party"), including without limitation the terms ofthis Agreement, or any other information disclosed by the Disclosing Party and identified by Disclosing Party as confidential ("Confidential Information"). The Receiving Party will not disclose such Confidential Information with any third parties without the Disclosing Paiiy's prior written consent. The Receiving Paiiy further agrees to use its best eff01is and to take all reasonable precautions to maintain strict confidentiality with respect to the Confidential Information and to prevent disclosure thereof to persons other than its employees, accountants, affiliates, attorneys, bankers, consultants, insurance advisors and carriers, and agents who need access to such information to carry out a Party's obligations under this Agreement, and the Receiving Paiiy shall be liable for the compliance by such third parties with the confidentiality obligations hereof.
The Receiving Party shall not use, or permit the use of, the Confidential Information for any purpose other than performing this Agreement and exercising the rights granted under this Agreement. The Receiving Paiiy acknowledges that the rights of the Disclosing Paiiy in the Confidential Information ai·e unique, and accordingly the Disclosing Party shall, in addition to such other remedies as may be available to it at law or in equity, have the right to enforce its rights hereunder by an action for injunctive relief and specific performance to the full extent permitted by law. Upon termination ofthis Agreement and the written request of the Disclosing Patiy, the Receiving Pa1iy shall return or destroy all copies of all Confidential Information to the Disclosing Patiy. To the extent it would be unreasonably costly or cumbersome, neither Party shall be required to delete intangible copies of Confidential Information that are made as part of such Party's routine systems back-up procedures.
Notwithstanding the foregoing, Licensor shall be entitled to disclose to a third party licensor ofai1y Third Patiy Softwai·e (a) the fact ofthis Agreement (including the identity of Licensee) and (b) audit results with respect to Licensee's compliance with the Third Paiiy Software terms of this Agreement. The provisions of this Article shall survive any termination of this Agreement or of any license granted hereunder.
11 FORCE MAJEURE
Neither patiy shall be liable for loss, dainage, or delay nor be in default for failure to perform ( other than payment obligations) due to causes beyond its reasonable control, including but not limited to acts of God, acts of war or terrorism, fire, flood, strike, labor disputes, acts or omissions of any governmental authority or of the other party, compliance with government regulations, embargos, fuel or energy sh01iage, delays in transp01iation, inability to obtain necessaiy labor, materials, or services from usual sources, or from defects or delays in performance of a party's suppliers or subcontractors due to such causes. In the event of a delay by either party due to the foregoing, the date of delivery or time for completion shall be extended by a period oftime reasonably necessaiy to overcome the delay. 12 ASSIGNMENT
Neither this Agreement nor any interest under this Agreement shall be assigned by Client without the prior written consent ofElster, except that either Party may assign this Agreement without prior consent in connection with a sale ofcontrolling interest in the capital stock or other equity interest of such Party, a sale of all or substantially all ofthe assets of such Party, or pursuant to a merger or consolidation. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Paities hereto and their respective successors and permitted assigns.
Exhibit C - System Maintenance Agreement 8 April 23, 2014 13 NOTICES
Any notice required or permitted hereunder shall be in wntmg and shall be deemed to have been delivered on the date evidenced by receipt obtained upon transmission by fax, upon delivery by commercial delivery service, or upon delivery by certified or registered mail to a party's address or facsimile number shown below:
Ifto Licensee
City of Santa Clara
Silicon Valley Power
Director ofElectric U ti 1 i ty
1500 Warburton Avenue
Santa Clara, CA 95050
Ifto Elster
Elster Solutions, LLC
208 S Rogers Lane
Raleigh, NC 27610
ATTN: Contracts Department
[email protected]
Either Party may at any time change its respective address or point ofcontact by sending written notice of the change to the other Party.
14 AMENDMENT AND ENFORCEMENT
This System Maintenance Agreement, including the Appendices attached hereto, contain the entire understanding ofthe paiiies with respect to the matters herein. This System Maintenance Agreement may not be modified except by writing, executed by authorized representatives of Licensor ai1d Licensee. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof shall be affected, and the remaining provisions shall continue with the same effect as if such unenforceable or invalid provision shall not have been inse1ied herein. If Licensee issues a purchase order or other document that purp01is to define System Maintenance other than as set forth in this System Maintenance Agreement, it is agreed that the terms ai1d conditions of any such purchase order shall have no application or effect, and that the provisions of this System Maintenance Agreement shall continue to control matters related to the provision of System Maintenance. Either party's failure to exercise any right under this System Maintenance Agreement shall not constitute a waiver of ai1y other terms or conditions ofthis System Maintenance Agreement with respect to any other or subsequent breach, nor a waiver by such paiiy ofits right at any time thereafter to require exact and strict compliance with the terms hereof. 15 HEADINGS
The headings and captions herein shall not be considered for purposes ofinterpretation or application, and are furnished for convenience only.
16 SURVIVAL
The provisions of Sections I, 2, 6, 7, 9, 12, and 13 shall survive the cancellation, expiration or termination ofthis Agreement.
17 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the choice of law or conflicts of law rules of any jurisdiction. The Paiiies agree that all causes of action against either Pmiy under this Agreement shall be brought solely and exclusively in the State Courts ofthe State ofCalifornia, or the U.S. District Court for California.
Exhibit C - System Maintenance Agreement 9 April 23, 2014 INTENDING TO BE LEGALLY BOUND, mE PARTIES HAVE AUIBORIZED THEIR REPRESENTATIVES TO EXECUTE THIS AGREEMENT AS OF THE "EFFECTIVE DATE" FIRST WRITTEN ABOVE.
CITY OF SANTA CLARA
By
Printed name Julio J. Fuentes -~--------
Title _C.,.....ity ___ M_an_a=-ge~r--~~--
Date Lo{~•/ l 'f
APPROVED AS TO FORM:
SANTA CLARA CITY ATTORNEY'S OFFICE
() (W& ¢11~ (kM-eAA--
i)(\ LINDSAY BEA, DEPUTY CITY ATTORNEY
ATTEST:
~~%~~
Exhibit C - System Maintenance Agreement IO
ELSTER SOLUTI
By
Printed name
Title
Date
April 23, 2014
SELECTED SUPPORT LEVEL
Support Level
Support Level Description Selected (Place an "X"
in the appropriate
box)
9x5 Customer Support Mon-Fri, from 8 AM to 5 PM Eastern X Time except designated Licensor holidays* 12 X 7 Customer Support 7 days a week, from 8 AM to 8 PM Eastern Time*
24 X 7 Customer Support 24 hours a day, 365 days a year* Optional Customer Support from 8 PM to 8 AM Eastern time for Emergency on- customers on 9x5 or 12x7 support for Severity 1 issues call * Reference Support Level Services table below for list of services available Severity I issues
System upgrades/patches
Gatekeeper upgrades
Severity 2 issues
Severity 3 issues
Meter upgrades
Managed services
Casual consulting
Status updates
Integration support
SUPPORT LEVEL SERVICES
9x5, 12x7 and 24x7
8 AM to 5 PM
Mon-Fri
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
12x7 and 24x7
8AMto 8PM
7 days/week
✓
✓
✓
Not supported during
extended hours
All times Eastern
Exhibit C - System Maintenance Agreement 11
24x7
8PMto 8AM
7 days/week
✓
Not supported during
overnight hours
April 23, 2014
APPENDIX C-1
YEARLY SYSTEM MAINTENANCE AGREEMENT FEES
1 SYSTEM MAINTENANCE FEE FOR EACH OPERATIONAL SYSTEM
The system maintenance fee is structured based on the level of support desired by the Licensee, total system size and optional services purcha sed by the Licensee. The table below describes the structme for system maintenance fees for the Energy Axis Management System.
The percent of license fees is determined by the desired suppmt level. Total list license fee includes licenses for all programs, system, modules, endpoints, interfaces and custom integrations purchased by the Licensee as defined in the latest amendment to the Licensor System License Agreement or customer statement ofwork.
Suppm·t Support Fees Optional Emergency On-call Support Level 9x5 20% ofSLAListFees 5% ofSLA List Fees per annum in addition to Standard Support, and per call fee of
$1000 for first hour, $500/hr for each
12 X 7 2 7% ofSLA List Fees subsequent hom or part thereof 24 X 7 3 4% ofSLA List Fees
A support level of 12 x 7 or 24 x 7 is mandatory for Advanced and 24 X 7 for Enterprise tier Licensees, as defined in the Energy Axis System Licen se Agreement.
It is highly recommended that customers with DA support have 24 X 7 SMA support. 2 FUTURE MODULES AND APPLICATIONS
Additional System Maintenance fees for new modules or applications will be determined at time of purchase.
3 ANNUAL INCREASE PROVISION
Licensor reserves the right to increase the annual SMA fee at the time of annual renewal each year after the 1st complete calendar year by the greater of 4% or the percentage change in the U .S. Department of Labor Consumer Price Index(CPI-U) for A II Urban Consumers, A 11 Items, U.S. City Average. The CPI U adjustment rate will be determined by comparing the percentage difference between the CPI-U in effect for the base twelve month average (October through September); and each (October through September) 12 month average thereafter . The percentage difference between the two CPI-U issues will be the adjustment rate.
4 OPTIONAL SYSTEM RETRAINING
Licensee with a current System Maintenance Agreement can pmchase optional system retraining for I week under the following tee structure. Training requests will be accepted subject to Licensor's resomce availability.
Exhibit C - System Maintenance Agreement 12 April 23, 2014 a) Training at Licensor's Facility in Raleigh, NC : $10 ,000 plu s $250 per set of printed materials (limited to a maximum of nine students in one training session) b) Training at Licensee's Facility: $15 ,000 plus trav e l and 1 iving and $250 per additional set of printed materials (limited to a maximum of nine students in one training session). 5 MAINTENANCE FEE FOR SYSTEMS INTEGRATION/BILLING CONVERSION
PROGRAM SUPPORT
An annual fee will be charged for maintenance ofLicensor developed interfaces and systems integration, to maintain compatibility with futw-e releases of Energy Axis Management system and customer enterprise system(s). These fees are determined at the time the integration is scoped and quoted, but are a minimum of20 % ofinitial development cost to Licensee . 6 DATABASE REFRESH ON NON-PRODUCTION SERVERS
Database refresh on test and backup systems requested by the Licensee are not part ofthe routine upgrade process, thus an additional maintenance fee will apply. The effort will be scoped based on the size ofthe database (usually 4 - 6 hrs for an Advanced system) , at the then current fee for a Support Engineer as defined in Appendix C-2 . For Advanced and Enterprise tier support, one database refresh during upgrade ofa production or test system, and one during production cut-over is included. 7 PRICING NOTES
System maintenance must be purchased for ALL ofthe Licensee's Management Systems (operational, backup and test) and the levels of coverage for all the Systems must be the same.
SMA support for any ofLicensee's systems is only available if the all ofthe applicable license fees have been paid (including any incremental backup and/or system Software License fees) , the system(s) installed and all of the Licensee's systems are w1der an active and paid SMA.
IfElster is responsible for Tier l support ofthird party WAN or MOM solutions, additional SMA fees will apply.
Exhibit C - System Maintenance Agreement 13 April 23, 2014 APPENDIX C-2
EA_MS Server System Maintenance Agreement
Professional Services Request Form
'.;,;i:~r:/~~: '<;2~/iSif L.lt1~r21 i52jL:::.::~x:·~:5 :~U,~~::::~:;;:;JiXi~-i.~; .. a1tAY~~£~;'.~;:;;7[:1~~i~:~~::'}S:SZ.::: '. ,:L::::s:, ,;:t~;;·''_:::· :·.:; .:.:::~ Elster Solutions, LLC
208 S Rogers Lane
Raleigh, NC 27610
Work requested by customer:
Systems Support Manager
Fax: (919) 250 5439
(Attach additional page(s) if more space is required)
Rates: The rates quoted below apply to work initiated in calendar year 2014 and completed within one (1) year. Rates are for labor only and DO NOT include travel and living expenses . . , Pf~r ess1011~l;~~~!£ e\o.\~:/\IJ:o~~tr ~,~ie,;';,, S~i;v•i~.ri.~.s~ripti~:n:;f fc: .:. ,: \,j;,f/:-.?'" jf;;}\';\, : • · ·;;,.;,,,:, r"{'~.i~;&:?·?t;f fttt··::, '.; :•.; i Program Manager $220 Project Management Office for large scale and tum key projects, including projects involving multiple vendors
Project Manager
Business Process
Specialist
Integration Developer
IT architect
Field Service Engineer
Database Administrator
Support Engineer
Logistics Coordinator
$180
$250
$180
$170
$170
$170
$160
$145
Assemble the project team, develop and execute the project schedule, report weekly status, and acquire the appropriate resources necessary to resolve issues Technical expertise for business process analysis re-engineering and integration scoping for Enterprise AMI integration
Develop software to integrate Enterprise business applications Technical expertise to ensure that the network elements, metering end points and hardware interfaces of the AMI system deployed function as intended to meet the specified AMI system requirements and configuration of network to meet Licensee's Enterprise IT Requirements
Field installation coordination and field trouble shooting Assistance with database management, optimization and migration Assistance with maintenance services outside the scope
Coordination of equipment and material delivery logistics Test Engineer $140 Definition and execution of system acceptance test of Licensor approved system configuration
Unless otherwise stated herein, Service prices are based on normal business hours (8 a.m. to 5 p.m. Monday through Friday). "Time" is on-the-job plus travel time to and from the job site from the regularly assigned office location. "Time" starts and ends at the person's regularly assigned office location unless otherwise agreed upon prior to the start of work. Overtime, Saturday hours will be billed at one and one half(l ½) times the hourly rate; Sunday will be billed at two (2) times the hourly rate and holiday hours recognized by Licensor will be billed at three (3) times the hourly rate. Minimum billable time per person will be four ( 4) hours.
'./§!~t1~y~lft~/rg1~tt~fi1:fii?l::iI~1Ht:·:;·::::':ff;.:c:\•· .. •~::1'\/:=:}·:'.~_u,ft;}Jl~r:A~~~kdi~A~~ere~~P!~!~t~I:.,:
Company:
Address:
City, State ZIP: Printed Name
ATTN:
Telephone No.:
Signature Date
: '.Eittei-Time Tracking SystemT~sk Naine ,··
• . ·. -. . ,' . . ' . ·. . : : . .. . . ··. . : -~ . '. • . . . :. . .
All services and products delivered under this request are governed exclusively by Elster Solutions, LLC General Terms and Conditions.
Exhibit C - System Maintenance Agreement 14 April 23, 2014 APPENDIX C-3
SEVERITY OF CUSTOMER CASES AND RESOLUTION TIMES
When customers open a case in the Elster Support System (ESS) User Portal, they can specify a priority ofthe problem. This will guide the support team about the actions to take when the case is assigned to a support analyst. Priorities will determine the W'gency with which a support engineer needs to statt investigating the problem .
SEVERITY 1 ISSUES
System is not functioning, unavailable , or unusable, or billing data is lost . Defects are critical in nature, do not allow the system to fully operate or impact data integrity, do not have workarounds and demand immediate action. Data integrity is defined as 10% or more of the actively communicating meters not read or processed. Examples include :
a) EA_MS hangs
b) Can't login to GUI
c) Billing schedule fails to run or meter read success rate is w1acceptable (below 90%), and WAN is properly functioning.
d) Integration application fails (if provided by Licensor) e) Database needs to be recovered from a backup copy (system fail over) In addition to opening a case, the customer shall repo1t Severity I issues via the Energy Axis supp01t line (866-554-9007) using the customer specific PIN.
2 SEVERITY 2 ISSUES
Loss of some functionality (not included in Severity 1) or partial loss of data. Defects do not stop system operation, do not preclude users from performing their tasks, and/or may partially impact data integrity (i.e. less than Severity 1). There may be a work around, but implementing the work around is unacceptably time consuming and will adversely affect Licensee's ability to conduct normal system production activities. Examples include:
a) Non-billing schedule is running with low performance b) GIS application does not work
c) Marriage File import fails
d) CIS import fails
e) Sudden change in number of orphaned nodes
f) Pa1tial data loss (Cannot read a EA_Gatekeeper or a meter - excluding WAN issues) g) Data is corrupt
h) Application has limited capability
Severity 2 cases shall be reported using the ESS User Portal. Additional telephone and/or email notification to Licensor Support is advisable but not required . 3 SEVERITY 3 ISSUES
Defects do not impact effective syste m operation, or have minimal effect on the system or license e's business process . An appropriate workaround is available. Unless expressly agreed, defect s will generally be resolved in Licensor's next maintenance release. Examples include :
a) Request missing marriage file
b) Explain feature functionality (like daily DR, HHF)
c) Request software upgrades
Exhibit C - System Maintenance Agreement 15 April 23, 2014 d) Request firmware upgrades
e) Request any other Elster Managed Services
Severity 3 cases shall be reported using the ESS User Portal 4 RESPONSE TIME/ RESOLUTION
The priority ofa case governs the expected response time for resolution. Resolution times are as follows:
4.1 Severity 1
a) Response time
Licensor will aclrnowledge the customer call repotiing such problems by phone or email within one hour of notification within contracted suppoti hours. If the problem is repotied outside of the contracted suppoti hours, Licensor will aclrnowledge the call the following business day.
b) Problem resolution
Licensor will make commercially reasonable best effotis to stati investigating the problem immediately after aclrnowledgement and attempts to fix the problem or provide a work around solutions as soon as reasonably possible.
4.2 Severity 2
a) Response time
Licensor will acknowledge such notice within six hours of notification within contracted support hours. If the problem is reported outside ofthe contracted suppoti hours, Licensor will acknowledge the call the following business day.
b) Problem resolution
Licensor will make commercially reasonable effort to stati investigation the problem within a business day ofaclrnowledgement, and will provide a solution in the form ofworkaround or documentation clarification, as soon as reasonably possible.
4.3 Severity 3
a) Response time
Licensor will acknowledge such notice within one business day. b) Problem resolution
Licensor will work on the case as time pern1its. Implementation ofthe solution may be in the form ofa workaround or documentation clarification. Generally, fixes for non-critical en-ors ai·e addressed in a future scheduled EA MS release.
Exhibit C - System Maintenance Agreement 16 April 23, 2014 APPE NDIX C-4
SYSTEM MAINTENANCE FEES SUMMARY
This appendix summari zes the system maintenance fees derived from the system license fees in Appendix B-4 of the System Licen se A greement at the time of the original purchase , and will be amended as necessaiy to reflect any changes to the Licen se or maintenance configuration after the initial pmchase .
EnergyAxis Premiere License and Maintenance fee Calculation EnergyAxis System License Fees
Base System
EnergyAxis Premier
Additiona l Backup I Test System
Virtua lization
Incremental AMI/AMR endpoint licen se fees (per 2,600 unit bundle) Axis Detect
Direct Wide Area Networl< (WAN) connection support
Third Party Meter Support
Water
Water Module Support /include s Site License for Route Manager} Gas
Gas Module Support (includes Site License for Route Manager) Demand Response (DR) I Home Area Network (HAN)
Base License Fee: Home Area Network (HAN) Support
DR Element I Device Fee (1 - 600,000)
DR Element I Device Fee /600,000+l
Distribution Automation {DA)
Base License Fee: Distribution Automation (DA) Support
DA Element I Device Fee {1 - 50,000)
DA Element I Device Fee (50,000+)
Secure Tunnel Server Gateways (0 - 60)
Secure Tunnel Server Gateways (61 - 200)
Secure Tunnel Server Gateways (200+)
Custom SW Development I Module s I Interfaces I Stand Alone Route Manager
EA Inspector Manager
Subtotal - AMI Software Licen se Fees (SLA)
Creditfor pre l'iously paid license f ees
Total - AMI Software License Fees (SLA)
EnergyAxis System Maintenance Fees
Base System
Standard Support: 9x6
Standard Support: 12x7
Standard Support: 24x7
Optional On-Call Emergency Support
Equipment Maintenance Fee: EA Inspector/ EA Installer Handheld Annual Increase Provision
Total - EnergyAxis System Maint enance (SMA)
Exhibit C - System Maintenance Agreement
Qty List Price
I $76,000 .00
2 $27,000.00
1 $10,000.00
1 $6,600.00
$16,000 .00
I $6,000.00
$6,000.00
1 $10,000.00
$10,000.00
1 $10,000.00
$1 .00
$0.76
I $10,000.00
$2.00
$1.60
$26,000 .00
$36,000.00
$60,000 .00
1 $0.00
1 $0.00
Qty List Price
20% 1 $36,900.00
27% $48,466.00
34% $61,030 ,00
6% $8,976.00
6 $896.00
4% I $41,270.00
17 Total
$76,000.00
$64,000.00
$10,000.00
$6,600.00
$0.00
$6,000 .00
$0.00
$10,000.00
$0,00
$10,000.00
$0.00
$0.00
$10,000.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0,00
$179,500.00
Total
$36,900.00
$0.00
$0,00
$0.00
$6,370.00
$1,660 .80
$42,920.80
Discount Price
$36,000.00
$16,000 .00
$10,000.00
$906,00
$16,000.00
$6,000.00
$6,000.00
$6,000.00
$10,000 ,00
$5,000.00
$0.76
$0.75
$6,000.00
$1.60
$1.50
$26,000.00
$36,000.00
$60,000.00
$1 ,100.00
$1 ,100.00
Ext. Price
$36,000.00
$30,000.00
$10,000.00
$906.00
$0.00
$6,000.00
$0,00
$6,000.00
$0.00
$6,000.00
$0.00
$0.00
$6,000.00
$0.00
$0.00
$0.00
$0.00
$0.00
$1,100.00
$1,100.00
$99,106 .00
($99,106.00)
$0,00
April 23, 2014