MASTER SALES AGREEMENT
General Terms and Conditions
This Master Sales Agreement (this “Agreement”) is made between Itron, Inc. an entity organized under the laws of Washington having an address at 2111 N. Molter Road, Liberty Lake, WA 99019, USA (“Itron”) and City of Vernon, California, a California charter City and California municipal corporation, having an address at 4305 Santa Fe Vernon, CA 90058 US (“Customer”) on [Agreement Start Date] (“Effective Date”). Itron and Customer are collectively referred to as the Parties or a Party, as applicable. 1 Introduction
1.1 Scope and Structure.
This Agreement applies to certain products and services provided by Itron to Customer and consists of these General Terms and Conditions, Addenda, Order Documents and Statements of Work.
1.2 General Terms and Conditions.
These General Terms and Conditions contain terms and conditions that are generally applicable to all products and services provided by Itron to Customer under this Agreement.
1.3 Addenda.
Addenda contain supplemental terms and conditions applicable to certain categories of products and services. Addenda incorporated into this Agreement on the Effective Date are identified on the Attachment Schedule. The Parties may add Addenda to this Agreement by written amendment after the Effective Date.
1.4 Order Documents.
Order Documents contain Fees and any related Statement of Work and supplemental terms and conditions applicable to specific products and/or services. Order Documents incorporated into this Agreement on the Effective Date are identified on the Attachment Schedule. The Parties may execute additional Order Documents after the Effective Date.
1.5 Order of Precedence.
In the event of a conflict between these General Terms and Conditions and an Addendum, the Addendum shall control. In the event of a conflict between an Order Document and these General Terms and Conditions or an Addendum, the Order Document shall control, but only with respect to the applicable products and services. These General Terms and Conditions, an Addendum or Order Document, as applicable, shall control over any conflict with a Statement of Work.
1.6 Purchase Order Requirement.
Customer shall purchase or license products or services described in each Order Document or Statement of Work under this Agreement by issuing a purchase order or similar ordering document accepted by Itron (“Purchase Order”) indicating specific products and services, Itron part numbers, quantity, unit price, total purchase price, shipping instructions, requested shipping dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and contract reference. No contingency contained on any Purchase Order shall be binding upon Itron. The terms of this Agreement shall apply, regardless of any additional or conflicting terms of any Purchase Order or other correspondence or documentation submitted by Customer to Itron, and any such additional or conflicting terms are deemed rejected by Itron.
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Itron Master Sales Agreement Page 2 of 60 Itron Confidential 2 Definitions.
The following defined terms are used throughout this Agreement. Additional terms may be defined in Addenda, Order Documents and Statements of Work.
Affiliate means any legal entity that directly or indirectly controls, is controlled by, or is under common control with, a Party to this Agreement, where "control" means ownership of at least fifty (50) percent of the equity having the power to vote on or direct the affairs of the entity.
Claim means an unaffiliated third-party claim, action, cause of action, or demand for damages, cost or expense (including reasonable attorney’s fees) or other relief.
Confidential Information means any confidential, trade secret or other proprietary information disclosed by a Party or a Party’s Affiliate related to its business that is designated as “confidential” or which a reasonable person knows or should understand to be confidential, regardless of the form of disclosure and whether of a technical, business or financial nature, including but not limited to processes and methods, product design and details of operation, product plans, prototypes, schedules, results, reports, computer programs, databases, compilations of data, engineering activity, manufacturing activity, analytical methods, strategies, and the like, but excluding information that: (i) is now or becomes generally available to the public through no fault or breach of the receiving Party; (ii) is rightfully in the receiving Party's possession, or known by it, prior to its receipt from the disclosing Party; (iii) is rightfully disclosed to the receiving Party by a thirdparty, free of any obligation of confidentiality; (iv) is developed by the receiving Party independently and without reference to the disclosing Party’s Confidential Information, or (v) is rightfully disclosed pursuant to the applicable laws or regulations, or rules of any stock exchange, or orders of the court or other government authorities with notice to the disclosing Party.
Customer Data means all data about Customer’s existing or prospective end users that Itron acquires, develops, or derives in connection with performance under this Agreement. Such customer data may include, without limitation, any personally identifying information relating to a Customer’s existing or prospective end user, or any other information that, either individually or when combined with other information could be used to identify a particular Customer end user or a prospective Customer end user, which information is not generally available to the public.
Customer Data does not include data sets from which all personally identifiable information and Customer-specific details have been removed (“Anonymized Data Sets”).
Defended Party means a Party entitled to defense and indemnification from the other Party under Section 7 (“Third-Party Claims”) of these General Terms and Conditions.
Defending Party means a Party obligated to provide defense and indemnification to the other Party under Section 7 (“Third Party Claims”) of these General Terms and Conditions.
Documentation means user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other documentation relating to products and services offered by Itron, which Itron customarily makes available to its customers.
Fees means all amounts payable to Itron by Customer for products and services provided under this Agreement, as set forth in an Order Document or Statement of Work.
Intellectual Property and Intellectual Property Rights mean all industrial and intellectual property, including, without limitation, patents, patent applications, invention registrations, and all other rights in inventions, copyrights in published and unpublished works, whether registered or unregistered, know-how, trade secrets, and confidential and proprietary information, whether such intellectual property has been created, applied for or obtained anywhere throughout the world. 00047596.0
Itron Master Sales Agreement Page 3 of 60 Itron Confidential Order Document means (i) any document attached hereto and identified as an Order Document or SOW on the Attachment Schedule on the Effective Date, and (ii) any other document identified as an Order Document or SOW that contains Fees and any related Statement of Work and supplemental terms and conditions applicable to specific products and/or services, references this Agreement, and is executed by the Parties after the Effective Date.
Statement of Work or SOW means any document describing services to be provided by Itron that is (i) attached hereto and identified as a Statement of Work on the Attachment Schedule, or attached to an Order Document, on the Effective Date, or (ii) any other document identified as a Statement of Work that references this Agreement and is executed by the Parties, or is attached to an Order Document that is executed by the Parties, after the Effective Date.
Territory means the country in which Itron delivers products and services to Customer. 3 Term.
The term of this Agreement begins on the Effective Date and expires three (3) years following the Effective Date. Any in-process Statements of Work and any accepted Purchase Orders as of the expiration date of this Agreement shall be completed by the Parties and the term of this Agreement will be extended solely for that purpose until completion. This section is subject to Section 11 (“Termination”) of these General Terms and Conditions.
4 Warranties and Disclaimer.
4.1 Warranties.
All warranties relating to products and services provided by Itron under this Agreement are set forth in the applicable Addendum or Order Document.
4.2 Disclaimer.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED BY ITRON UNDER SECTION 4.1 (WARRANTIES”)
OF THESE GENERAL TERMS AND CONDITIONS, ITRON MAKES NO WARRANTY OF ANY KIND RELATING
TO PRODUCTS AND SERVICES AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY
CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. ITRON AND ITS SUPPLIERS DO NOT WARRANT OR REPRESENT THAT PRODUCTS OR SERVICES WILL BE FREE FROM BUGS, ERRORS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE.
ITRON ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF
TRANSMISSION TO OR FROM ITS DATA CENTERS OR DATA CENTERS OF ITS VENDORS VIA WAN,
CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS (INCLUDING OUTAGES,
DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING) OR FOR ANY CONSEQUENCES, LOSSES,
OR DAMAGES ARISING FROM CHANGES MADE BY CUSTOMER TO THE CONTENT OR PROGRAMMING OF EQUIPMENT (UNLESS CAUSED BY A DEFECTIVE PRODUCT). THESE DISCLAIMERS WILL APPLY
NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT.
5 Intellectual Property.
5.1 Reservation of Intellectual Property.
Subject to the limited rights expressly granted by Itron to Customer under this Agreement: (i) Itron reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the 00047596.0
Itron Master Sales Agreement Page 4 of 60 Itron Confidential Parties, Itron owns all rights, title and interest in and to its Confidential Information and the products, services and related deliverables provided by Itron under this Agreement. Subject to the limited rights expressly granted by Customer to Itron under this Agreement, Customer reserves all rights, title and interest in and to all of its Intellectual Property, and (ii) as between the Parties, Customer owns all right, title and interest in and to its Confidential Information and Customer Data. All rights, titles, and interests not specifically and expressly granted by either Party hereunder are hereby reserved. Nothing in this Agreement will be understood to preclude or limit Itron from providing software, materials, or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to those delivered to Customer.
5.2 Customer Suggestions.
Itron shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
6 Fees, Invoicing, Payment, and Taxes.
6.1 Fees.
Fees for products and services are set forth in the applicable Order Document or Statement of Work.
Unless otherwise provided in an applicable Addendum, Order Document, or Statement of Work, Fees for products and services are in US Dollars and valid for one (1) year from the effective date of the Order Document or Statement of Work.
6.2 Invoicing.
Itron will invoice Customer for products and services in accordance with the applicable Addendum, Order Document or Statement of Work. Itron will issue invoices to Customer via email to an email address, which Customer shall designate.
6.3 Payment.
Customer must pay each invoice within thirty (30) days of the invoice issuance date. Payment must be made in US Dollars and made by electronic transfer to a bank account designated by Itron.
6.4 Invoice Disputes.
Customer shall notify Itron in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the original invoice date. Invoices for which no such timely notification is received shall be deemed accepted by Customer as true and correct, and Customer shall pay all amounts due under such invoices within the period set forth in Section 6.3. The Parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 14.
Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under this Agreement.
6.5 Late Payment.
Except for invoiced payments that Customer has timely disputed, all late payments shall bear interest at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Itron for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Itron does not waive by the exercise of any rights hereunder), Itron shall be entitled to suspend the provision of any services and/or 00047596.0
Itron Master Sales Agreement Page 5 of 60 Itron Confidential delivery of any products if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof.
6.6 Right to Sell Receivables.
Customer agrees that Itron is entitled to sell and assign amounts due by Customer related to an undisputed invoice to any third party. Customer agrees to promptly sign all such documents, and take all such further actions, as Itron may reasonably request from time to time to facilitate and/or evidence such sale and assignment.
6.7 Taxes.
All prices are exclusive of any taxes, however designated, including without limitation sales or use, goods and services, consumption or other similar fees or taxes imposed on it with respect to the payments due to Itron under this Agreement. Customer shall be responsible for and pay on a timely basis any taxes imposed on it related to products and services provided by Itron pursuant to this Agreement (except for taxes based on Itron’s net income) or shall present Itron with an exemption certificate or direct pay permit authorized by the relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice. The Parties agree to fully cooperate with one another regarding taxes and any related issues arising from this Agreement and to use reasonable efforts to make use of any lawful reliefs or exemptions that could apply. Customer shall indemnify and hold Itron and its affiliates harmless from any tax liability assessed against Itron or its affiliates but rightfully owed by Customer arising from or related to transactions relating to this Agreement.
7 Third-Party Claims.
7.1 General Claims.
The Defending Party will defend the Defended Party from and against Claims arising from personal bodily injury, death, or damage to tangible personal property or real property, and will indemnify the Defended Party from resulting settlements approved by the Defending Party and final judgments entered against the Defended Party, to the extent caused by the negligence of the Defending Party.
7.2 Infringement Claims.
Itron will defend, or at its option settle, any Claim against Customer alleging that any Itron-branded products or services, as delivered to Customer, infringe upon any third party’s Intellectual Property Rights within the Territory. If Itron receives notice of an alleged infringement by any products or services, or if Itron reasonably believes that an infringement Claim is likely, Itron may stop delivery of the affected products or services without liability for failure to deliver them. Itron will have the right, at its sole option, to obtain the right for Customer to continue use of the affected products or services, or to replace or modify the affected products or services so that they are no longer alleged or believed to infringe, if it can be done without significant loss of functionality. If neither of the foregoing options are available to Itron on commercially reasonable terms, Itron may terminate Customer’s use of the affected products or Services without further liability under this section, in which case Itron will refund to Customer the depreciated value of the affected product and any prepaid unused portion of the service.
7.3 Conditions to Defense.
As a condition to the Defending Party’s obligations under Section 7.1 or Section 7.2 above, the Defended Party must: (i) promptly notify the Defending Party in writing of the Claim; (ii) give the Defending Party all reasonably requested information and assistance in connection with the Claim in a timely manner; and (iii) give the Defending Party the sole right to control the defense and settle of the Claim. The Defending Party shall not enter into any settlement of a Claim against a Defended Party without the 00047596.0
Itron Master Sales Agreement Page 6 of 60 Itron Confidential Defended Party’s prior written consent unless: (a) there is no admission of fault of the Defended Party; (b) there is no injunctive or other non-monetary relief against the Defended Party; and, (c) the settlement includes the claimant’s or plaintiff’s release of the Defended Party from all liability in respect of the Claim.
7.4 Exclusions to Infringement Claim Defense.
Itron will have no obligation under Section 7.2 above for any infringement Claim in which infringement is alleged or caused by (i) the combination, operation or use of any product or service provided by Itron with any product or service (including third-party software and equipment) not provided by Itron, (ii) any modification to products or services made either without Itron’s prior written consent or by a person other than Itron or an authorized representative of Itron , (iii) failure to use updated or modified products or services as provided by Itron, (iv) use of any release of Itron software or any firmware other than the most current release made available to Customer, (v) use of products or services not in accordance with this Agreement and applicable Documentation, or (vi) Itron’s compliance with any designs, specifications, or instructions provided by Customer. In addition, Itron shall not be liable for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer.
7.5 EXCLUSIVE REMEDY. THIS SECTION 7 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER. 8 Insurance.
Itron will maintain the following minimum levels of insurance (i) workers’ compensation insurance for Itron employees equal to applicable statutory limits and an employer’s liability policy in an amount not less than $1,000,000.00; (ii) an occurrence form commercial general liability policy or policies in an amount not less than $1,000,000 per occurrence and $2,000,000.00 aggregate; (iii) an automobile liability policy or policies in an amount not less than $1,000,000.00 combined single limit; and (iv) a professional liability policy or policies insuring against liability for errors and omissions covering professional activities contemplated under this Agreement in an amount not less than $1,000,000.00.
Upon written request, Itron will provide Certificates of Insurance evidencing the coverage described, so long as Itron is providing products or services under this Agreement. 9 Data Protection.
The Parties must implement and establish reasonable security protocols for the protection and retention of Customer Data. As between Customer and Itron, Customer will retain its rights in Customer Data; provided, however, Customer hereby grants Itron a non-exclusive, royalty-free, perpetual, worldwide license to copy, modify, use, sublicense, distribute, display, create derivative works of all Customer Data for the purposes of (i) providing products and services to Customer, (ii) testing, troubleshooting, and optimizing performance and quality of Itron’s products and services, and (iii) creating Anonymized Data Sets, so long as Customer is not identifiable and all personally identifiable information is either removed or anonymized. Itron’s use of Anonymized Data Sets, including for the purposes of analysis, reporting, program management, and to maintain, improve, and develop its products and services. shall not conflict with Itron’s obligations under this Agreement and shall comply with applicable data security and privacy protection laws. Itron assumes no responsibility for Customer or third-party content carried on Customer’s or Itron’s systems. Customer warrants and represents that, during the term of this Agreement, (a) it has the legal right and authority to grant Itron access to view, store, and use the Customer Data to provide products and services, and (b) Itron’s transmission, use and storage of any such Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third-party. 00047596.0
Itron Master Sales Agreement Page 7 of 60 Itron Confidential 10 Confidentiality.
Each Party receiving, possessing, accessing or otherwise acquiring Confidential Information of the other Party acknowledges that the disclosing Party's Confidential Information is the property of and confidential to, or a trade secret of, the disclosing Party. The receiving Party: (a) must keep the disclosing Party's Confidential Information confidential and may not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the disclosing Party’s prior written approval; (b) must take all reasonable steps to secure and keep secure all disclosing Party's Confidential Information coming into its possession or control; (c) may not disclose any Confidential Information to anyone other than the receiving Party’s employees, agents, contractors or subcontractors and professional advisors, or those of its Affiliates, who have a need to know such Confidential Information; (d) must use the Confidential Information solely for purposes related to the subject matter of this Agreement or for potential future commercial transactions between the Parties not otherwise covered by a separate agreement; and (e) must ensure that any person to whom it discloses Confidential Information in accordance with this provision is subject to binding confidentiality obligations that are at least as restrictive as those set forth in this Agreement. 11 Termination.
Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings, or (ii) commits a material breach of this Agreement that remains uncured for thirty (30) days following delivery of written notice of such breach. Any notice of breach must specify (a) the nature of the breach, and (b) the specific act or acts that the nonbreaching Party contends would correct such breach. For the avoidance of doubt, Customer’s failure to pay invoices timely will be deemed a material breach of this Agreement. 12 Survival.
The following sections of these General Terms & Conditions shall survive termination or expiration of this Agreement or any Order Document or Statement of Work: 1 (Introduction), 2 (Definitions), 3 (Term), 4.2 (Disclaimer), 5 (Intellectual Property), 6 (Fees, Invoicing, Payment and Taxes), 9 (Data Protection), 10 (Confidentiality), 11 (Termination), 12 (Survival), 13 (Limitation of Liability), 14 (Disputes), 15 (Governing Law and Venue), 17 (Publicity), 18 (Sub-contractor and Outsourcer), 19 (Independent Contractor), and 20 (Miscellaneous). An Addendum or Order Document may also contain provisions that expressly survive termination or expiration of this Agreement or any Order Document or Statement of Work.
13 Limitation of Liability.
Except for Customer’s violation of Itron’s Intellectual Property Rights, neither Party will be liable to the other Party for any consequential, indirect, special, incidental, punitive or exemplary damages arising out of this Agreement or products or services provided hereunder (including, but not limited to, damages for loss of data, goodwill, profits other than amounts payable by Customer to Itron hereunder, investments, use of money or facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets), whether or not foreseeable and even if such Party has been advised of the possibility of such damages. Except for Customer’s payment obligations hereunder or violation of Itron’s Intellectual Property Rights, neither Party’s total, aggregate liability to the other Party arising out of or related to this Agreement or any products or services provided hereunder shall exceed the amounts paid and payable by Customer under the applicable Order Document or Statement of Work during the twelve month period immediately preceding the date upon which the liability arose, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
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Itron Master Sales Agreement Page 8 of 60 Itron Confidential 14 Disputes.
The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute”) in accordance with this Section. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within thirty (30) Business Days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party designated by such Party in a written notice to the other Party (“Executive(s)”). If the Executives cannot resolve any Dispute during the time period ending thirty (30) Business Days after the date of the Escalation to Executive Notice (the last day of such time period, the “Escalation to Mediation Date”), either Party may submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation.
The Parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, within sixty (60) Business Days after the Escalation to Mediation Date, either Party may proceed in accordance with the provisions of Section 15 (Governing Law and Venue). Notwithstanding the foregoing, nothing in this Section shall be construed as preventing a Party from seeking available equitable relief, including without limitation, specific performance and injunctive relief in a court of competent jurisdiction.
15 Governing Law and Venue.
This Agreement and all related documents, including all addenda attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Central District of California, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in Los Angeles County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the United States District Court for the Central District of California, or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in Los Angeles County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
16 Legal Compliance.
Each Party must comply with all applicable laws. Itron’s products and services delivered under this Agreement are subject to the U.S. Export Administration Regulations (“EAR”; 15 CFR part 730 et seq.) 00047596.0
Itron Master Sales Agreement Page 9 of 60 Itron Confidential and any applicable laws and regulations of the particular country to which such items are shipped or received. Customer shall comply with all applicable export control laws and shall not cause, directly or indirectly, the export, re-export, or transfer of any such items or services to destinations or persons without obtaining any required prior authorization from the U.S. Government and any other applicable local authorities. Customer shall not do anything to cause Itron to violate such export control laws, including, but not limited to, requesting support for a product that has been unlawfully re-exported or requesting delivery of a product or service intended for a U.S. sanctioned region or person. Each party represents that it is not listed on a U.S. Government restricted party list for export control or trade sanctions purposes, and is not 50% or more owned, in the aggregate, by one or more restricted parties.
Customer shall maintain any required export records related to Itron’s products or services and make such records available to Itron upon request. The Parties must comply with all anti-bribery laws and may not make any payments or transfer any item of any value for the purpose of bribing any individual or group, or accepting or participating in any extortion, kickbacks, or other unlawful or improper means to obtain business related to this Agreement or products and services orderable under this Agreement. 17 Publicity.
Neither Party may issue a press release related to this Agreement or their relationship without the other Parties’ prior written consent. The Parties may create and approve for publication a press release announcing their relationship under this Agreement. Itron may use Customer’s name and logo as a part of Itron’s normal marketing materials.
18 Nuclear Applications.
Customer acknowledges that products and services orderable under this Agreement are not designed or intended for use in the design, construction, operation or maintenance of any nuclear facility. 19 Sub-contractor and Outsourcer.
Itron may hire, engage, or retain the services of one or more subcontractors and/or outsourcing providers to perform any or all of its obligations related to its product development, network operations, and/or any portion of services provided under this Agreement. Subcontractors and outsourcing providers that have access to Customer Data will be bound by written obligations of confidentiality and data security requirements as restrictive as those required under this Agreement. 20 Independent Contractor.
This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. The Parties are independent contractors. Neither Party has any authority to act on behalf of, or to bind the other to any obligation. 21 Force Majeure.
Neither Party (the “Impacted Party”) shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for Customer’s obligations to make payments to Itron under this Agreement), when and to the extent such failure or delay is caused by or results from acts or omissions (whether in effect on or after the Effective Date of this Agreement) beyond the Impacted Party's reasonable control and without the Impacted Party’s negligence, including, without limitation: (a) acts of God; (b) severe weather, flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) changes in applicable laws or regulations; (e) embargoes or blockades; (f) action or inaction by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate materials, qualified labor, power or transportation; (j) epidemics, 00047596.0
Itron Master Sales Agreement Page 10 of 60 Itron Confidential pandemics or quarantines; and (k) other similar or dissimilar circumstances outside the Impacted Party’s reasonable control and without the Impacted Party’s negligence (each a "Force Majeure"). 22 Miscellaneous.
(a) If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction or arbitration panel, such provision will be deleted and the remaining terms will be construed so as to give maximum lawful effect to any such deleted terms. (b) Section numbers and captions are provided for convenience of reference and do not constitute a part of this Agreement. Any references to a particular section of this Agreement will be deemed to include reference to any and all subsections thereof. (c) The Parties agree that neither of them will be deemed the drafter of this Agreement and that no provision will be construed in favor of one Party on the ground that such provision was drafted by the other. (d) No waiver by either Party of any breach under this Agreement will constitute a waiver of any other breach. (e) This Agreement is not made for the benefit of any third parties. (f) All notices under this Agreement must be sent in writing to the addresses identified in this Agreement or to such other address as such Party has notified the other in writing, will be effective on the date received (unless the notice specifies a later date) and must be sent by a courier service that confirms delivery in writing, or by certified or registered mail, postage prepaid, return receipt requested. All communications and notices to be made or given pursuant to this Agreement must be in English. (g) Customer may not assign this Agreement or any of its rights hereunder without Itron’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns, but any assignment in violation of this provision will be void. (h) This Agreement may be executed and delivered in counterparts, including by a facsimile or by scan and electronic transmission, each of which will be deemed an original. Any document generated by the Parties related to this Agreement may be imaged and stored electronically and introduced as evidence in any proceeding as if original business records. (i) This Agreement contains the complete and entire agreement between the Parties as to its subject matter, and replaces and supersedes any prior or contemporaneous communications, representations, or agreements, whether oral or written with respect to such subject matter. (j) This Agreement may not be modified except by mutual written agreement signed by the Parties’ authorized representatives expressly modifying this Agreement.
Electronic communications do not constitute a “written agreement” under this provision. [Signature Page Follows]
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Itron, Inc. City of Vernon, California
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ATTACHMENT SCHEDULE
• Equipment Addendum
• Maintenance and Support Services Addendum
• Software Addendum
• SaaS Addendum
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EQUIPMENT ADDENDUM
1 Relationship to General Terms and Conditions.
This Addendum is governed by the General Terms and Conditions and applicable Order Documents. 2 Additional Definitions.
The following defined terms are in addition to those defined in the General Terms and Conditions:
Equipment means Itron Equipment and Third Party Equipment.
Firmware means the object code version of software embedded in Equipment.
Itron Equipment means equipment listed on an Order Document for sale to Customer under this Agreement that is manufactured by or on behalf of Itron.
Third-Party Equipment means equipment listed on an Order Document for sale to Customer under this Agreement that is not manufactured by or on behalf of Itron.
Warranty Period means the Itron Equipment warranty period specified on the attached Itron Equipment Warranty Table, if no other applicable Warranty Period is specified in the Order Document, or the Warranty period set forth in the Order Document, if the Order Document specifies the applicable Warranty Period.
3 Ordering Equipment.
Customer shall order Equipment by issuing a Purchase Order to Itron in accordance with this Agreement. 4 Invoicing.
Itron will invoice Customer for Equipment, any related surcharges, and reimbursable shipping-related expenses, on or after the date of shipment.
5 Ordering, Lead Time & Ship Date.
Scheduled shipping dates will be assigned by Itron as close as possible to Customer’s requested date based on Itron’s then-current lead times for the Equipment. Upon Customer’s request, Itron will communicate current lead times. Itron will also communicate scheduled shipping dates in the order acknowledgment or on Itron’s customer portal.
6 Order Cancellation & Rescheduling.
Purchase Orders for Equipment may not be canceled or rescheduled by Customer, unless agreed to by Itron.
7 Forecasts.
Each month Customer will provide Itron with a rolling, nonbinding, minimum 12-month forecast of Customer’s anticipated Equipment demand.
8 Shipment, Title & Risk of Loss.
Itron will ship Equipment to the location specified in the applicable Purchase Order. Unless otherwise provided in a Pricing Summary to this Agreement, Customer is responsible for reimbursing Itron’s freight, insurance, and other shipping expenses, which will be invoiced to and paid by Customer. At Customer’s request, Itron will make shipping arrangements with Customer’s designated carrier to ship Equipment from the production facility to the final delivery destination on Customer’s account, if Customer provides Itron with account and other information required by Itron to make such arrangements. Otherwise, Itron will select the carrier. Risk of loss and title to Equipment shall transfer 00047596.0
Itron Master Sales Agreement Page 14 of 60 Itron Confidential to Customer upon shipment. Itron may charge Customer reasonable storage fees if Customer’s designated carrier fails to take delivery of Equipment within five (5) business days of the date Itron makes such Equipment available for shipment.
9 Documentation.
Itron will make its standard Documentation for Itron Equipment available via download. Itron will provide Customer with download instructions.
10 Equipment Firmware.
The purchase of Itron Equipment includes a nonexclusive license under Itron copyrights to use Firmware in Itron Equipment. The license to any Firmware in Third-Party Equipment purchased by Customer through Itron shall be between Customer and the manufacturer of the Third-Party Equipment. 11 Returns.
Except as provided in Section 12 below, Itron does not accept returns unless: (i) Itron shipped a product other than as specified in the Purchase Order, (ii) such product is unopened, and (ii) the product is returned in accordance with Itron’s then current RMA policy and procedures. 12 Itron Equipment Warranty.
Itron warrants solely to Customer that, during the Warranty Period, Itron Equipment will be free from defects in materials and workmanship and will conform in all material respects to the applicable Itron published specifications. As Customer’s sole and exclusive remedy for a breach of the foregoing warranty, Itron will, at its option and expense: (i) repair or replace faulty Itron Equipment under warranty after it has been returned to an Itron-designated repair facility during the Warranty Period in accordance with Itron’s then current RMA policy and procedures, (ii) provide Customer with a Firmware or software fix to correct the nonconformity, or (iii) if Itron determines (in its reasonable judgment) that it is unable to provide a remedy specified in item (i) or (ii) of this section, Itron will provide Customer with a depreciated refund of the purchase price for the applicable Itron Equipment. Customer will pay the cost of returning Itron Equipment to the Itron designated repair facility and Itron will pay the cost of returned repaired or replacement Itron Equipment to Customer. Customer is responsible for any labor costs associated with removal or reinstallation of Itron Equipment. Repaired and replacement Itron Equipment will be warranted for the remainder of the Warranty Period, or sixty (60) days from the ship date of the repaired or replaced Itron Equipment, whichever is longer. Additional warranty terms for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. 13 Itron Equipment Warranty Exclusions.
The above warranty and additional warranty terms in the attached Itron Equipment Warranty Table do not cover Itron Equipment in poor operating condition due to: (a) changes made to Itron Equipment without Itron’s prior written consent; (b) use with cables, mounting kits, antennas, battery backups and other devices, third party software or firmware that Itron has not provided to Customer or approved in writing for use with Itron Equipment; (c) Customer’s or a third party’s misuse, abuse, negligence, or failure to install, test, handle or operate Itron Equipment in accordance with its Documentation; (d) a Force Majeure event; or (e) incorrect data, or data entry or output by Customer or a third party not under Itron’s control. Additional warranty exclusions for specific Itron Equipment may be specified in the attached Itron Equipment Warranty Table. Customer may request that Itron repair Itron Equipment damaged by any of the foregoing; if Itron agrees to make such repairs, Customer may be charged additional Fees.
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Itron Master Sales Agreement Page 15 of 60 Itron Confidential 14 Integration of Itron Equipment.
If Customer purchases Itron Equipment for integration into third-party devices or other third-party hardware, Customer must obtain warranty service for the Itron Equipment from the third-party integrated device provider.
15 Equipment End of Sale.
15.1 Notice. During the applicable pricing period, Itron will provide Customer with no less than one hundred and eighty (180) days’ notice before discontinuing the sale of any Itron Equipment set forth in an Order Document, provided that Customer has purchased such Itron Equipment within the three hundred and sixty-five (365) day period preceding the date upon which notice is to be given. During the foregoing notice period, Customer may place non-cancellable nonreturnable “last time buy” Purchase Orders for any Itron Equipment identified in the end of sale notice, unless such discontinued sale is due to a Force Majeure Event in which case the last time buy will be governed by the Force Majeure Event notification. Customer must take delivery of all such Itron Equipment ordered within one hundred and eighty (180) days of the Purchase Order acceptance date or within thirty (30) days from shipment availability, whichever is longer.
Itron’s sole obligation with respect to the discontinuance of Third-Party Equipment is to provide Customer with any end of sale notice that Itron receives from the Third-Party Equipment manufacturer.
15.2 Replacement Itron Equipment. Itron will not end of sale any Itron Equipment during the pricing period without making functionally equivalent replacement equipment available for purchase by Customer, provided such functionality is listed in the Itron Documentation for such Itron Equipment in use by Customer. Any such replacement equipment will be backwards compatible and interoperable with other Itron Equipment to the same extent as the Itron Equipment it was designed to replace. Itron may either (i) disable any new functionality or features provided by the replacement equipment, or (ii) if Itron is unable to disable any new functionality or features in the replacement equipment, or Customer elects to purchase such new functionality or features, charge Customer the applicable fees for such new functionality or features.
16 Third-Party Equipment Warranty.
Itron is not the manufacturer of the Third Party Equipment and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, fitness for use, merchantability, condition, quality, performance or non-infringement of Third-Party Equipment. Third Party Equipment shall be subject to any warranties provided by the Third Party Equipment manufacturer.
Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third Party Equipment manufacturer. 17 Survival.
The following sections of this Addendum shall survive termination or expiration of this Agreement or any Order Document or Statement of Work: 1 (Relationship to General Terms and Conditions), 2 (Additional Definitions), 4 (Invoicing), 6 (Order Cancellation & Rescheduling), 8 (Shipment, Title & Risk of Loss), 10 (Equipment Firmware), 11 (Returns), 12 (Limited Itron Equipment Warranty), 13 (Itron Equipment Warranty Exclusions), 14 (Integration of Itron Equipment), 15 (Third-Party Equipment) and 16 (Survival).
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Itron Master Sales Agreement Page 16 of 60 Itron Confidential
ITRON EQUIPMENT WARRANTY TABLE
Itron Equipment or Repair Service Warranty Period and Additional Warranty Terms 100W+ series water module (including
battery)
500W series water module (including
battery)
Each 100W+ and 500W series water module (including
battery) (each, a “Water Module” and collectively, the
“Water Modules”) receives a 20-year warranty consisting of 10 years of warranty coverage under Section 12 (“Itron Equipment Warranty”) followed by 10 years of discounts
against replacement products, as described below:
Warranty Period: 10 years from date of shipment.
Discount Period: If a Water Module (including battery)
fails during the ten-year period following expiration of the applicable Warranty Period (the “Discount Period”),
subject to applicable warranty exclusions under Section 13 (“Itron Equipment Warranty Exclusions”), Itron will
provide Customer with a discount off Itron’s then-current list price for any available Itron water module to replace the failed Water Module (including battery) per the
discounts set forth below:
Discount Period Discount
Years 1 through 5 50%
Years 6 through 10 25%
Itron does not guarantee that replacement Water Modules will be backwards compatible.
Warranties on the applicable Water Modules shall be void if (a) such Water Module is used in connection with a thirdparty reading system that has not been approved by Itron in writing; or (b) Customer utilizes the two (2) battery version of such 500W Water Module in mobile mode for
more than two (2) consecutive years.
CGR ACT Module (CAM) Warranty Period: 5 years from date of shipment.
Itron Leak Sensor
CENTRON Electric Meter Warranty Period: 3 years from date of shipment.
Intellis Gas Meter
SENTINEL Electric Meter
QUANTOMETER (MZ) Gas Meter Warranty Period: 2 years from date of shipment.
ROTARY (DELTA) Meter
TURBINE (FLUXI) Gas Meter
Repairs or updates for out-of-warranty
electricity meters
Additional Warranty Terms: Itron shall perform the
repairs or updates with reasonable care and in a diligent and competent manner. Itron's sole obligation in connection with repair or update failures shall be, at its option, to correct or re perform repairs/updates or refund to Customer the amount paid for the repairs/updates. Customer must
report any deficiencies in repair work to Itron in writing 00047596.0
Itron Master Sales Agreement Page 17 of 60 Itron Confidential Itron Equipment or Repair Service Warranty Period and Additional Warranty Terms within 90 days of shipment to receive the remedies
described herein.
Repairs or updates for out-of-warranty
Socket Based Routers, Pole Mounted
Routers and Routing Nodes
Additional Warranty Terms: Itron shall perform the
repairs or updates with reasonable care and in a diligent and competent manner. Itron's sole obligation in connection with repair or update failures shall be, at its option, to correct or re perform repairs/updates or refund to Customer the amount paid for the repairs/updates. Customer must
report any deficiencies in repair work to Itron in writing within 90 days of shipment to receive the remedies
described herein.
All other Itron Equipment not listed
above.
Warranty Period: 1 year from date of shipment.
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Itron Master Sales Agreement Page 18 of 60 Itron Confidential
MAINTENANCE AND SUPPORT SERVICES ADDENDUM
1. Relationship to General Terms and Conditions.
This Addendum is governed by the General Terms and Conditions and applicable Order Documents.
2. Additional Definitions.
The following defined terms are in addition to those defined in the General Terms and Conditions:
Annual Adjustment means Itron’s annual price increase.
Annual Fees means the annual fees identified in an Order Document for each category of Covered Product, plus the Annual Adjustment, if any.
Client Services Guidelines Documents means the following documents as they may be updated by Itron from time to time: “Product Contact Information Sheet”, “After Hours Support”, “Itron Equipment Repair Center Locations”, and “Working Effectively with Itron Global Services”. Copies of the Client Services Guidelines Documents may be obtained by calling (877) 487-6602 or such other number or process provided by Itron to Customer.
Covered Equipment means Itron equipment identified as “Covered Equipment” in an Order Document.
Covered Firmware means Itron’s network and application firmware embedded within a communicating device identified in an Order Document (e.g., network interface cards, meters, endpoints, network equipment, etc.) for which Customer has purchased firmware Maintenance Services.
Covered Products mean Covered Firmware, Covered Software, Covered Equipment and Third Party Covered Products.
Covered Software means Itron software identified as “Covered Software” in an Order Document.
Error means a material failure of Covered Firmware or Covered Software to comply with applicable published Itron specifications.
Fix means a correction or workaround for an Error.
Global Support Services means those support services provided by Itron technical representatives via telephone, email, website or other means to assist Customer’s Primary Service Contacts with questions or issues related to the operation of Covered Products.
Improvement means an update, modification, enhancement and/or extension to Covered Software functionality that is included in a Release.
M&S Commencement Date means the date upon and after which a Covered Product will be entitled to receive Maintenance Services, which unless otherwise provided in the applicable Order Document, will be as follows:
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Itron Master Sales Agreement Page 19 of 60 Itron Confidential Covered Product M&S Commencement Date
On premise Covered Software First day of month following date Covered Software is made available to Customer
Covered Firmware Date of shipment of the applicable
communicating device
Covered Software provided as Softwareas-a-Service or Hybrid SaaS subscriptionThe earlier of (1) validation of Softwareas-a-Service implementation by Itron pursuant to the applicable Statement of
Work, or (2) sixty (60) days after
completing application system setup
Covered Equipment End of warranty period
Third Party Covered Products Per applicable third-party service provider terms and conditions
Maintenance Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
Maintenance Services means services provided under this Addendum.
Operating Condition means performance in accordance with applicable published Itron specifications.
Primary Services Contacts means Customer’s primary support staff who provides internal support to Customer’s operations personnel and who are key interface to Itron for all Maintenance Services.
Release means a collection of Fixes and / or Improvements made available by Itron to Customer.
Service Levels means the defined level of impact and associated response time, effort level, and escalation path procedures and guidelines described in Attachment A-1 to this Addendum.
Service Request means an Itron tracked Customer request for Global Support Services.
Third Party Covered Products means third-party equipment and third-party software identified as “Third Party Covered Products” in an Order Document.
3. End of Support.
Itron may discontinue Maintenance Services for any Covered Equipment, Covered Firmware or Covered Software, effective as of the end of the applicable Maintenance Billing Cycle, by giving Customer written notice of such discontinuance no less than one hundred eighty (180) days prior to the end of such Maintenance Billing Cycle. The end of support date for a Third Party Covered Product shall be the date specified by the applicable third-party service provider, which date will be promptly communicated by Itron to Customer following the date of receipt.
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Itron Master Sales Agreement Page 20 of 60 Itron Confidential If the end of support date is scheduled within a subsequent Maintenance Billing Cycle, Annual Fees for that subsequent Maintenance Billing Cycle will be pro-rated through the end of support date. At Customer’s request, or as defined in a related SaaS addendum / Order Document, Itron may elect to provide custom support for products for which Maintenance Services have been discontinued at Itron’s then-current rates. Unless otherwise agreed by the Parties in accordance with the foregoing sentence, Itron shall have no obligation to provide Maintenance Services with respect to Covered Products for which Itron has discontinued Maintenance Services.
Periodically, Itron will make available product plan publications, including product information letters (PIL), product newsletters or written technology roadmaps which outline Itron’s general plans for continued support and end of support of applicable Covered Products. Product publications are used as general guidelines for Customer communications and planning, which may be updated from time to time.
4. Principal Services Contacts.
a. Designation by Customer.
Customer shall designate a minimum of one and not more than two Primary Services Contacts for each Covered Product line, to serve as administrative liaisons for all matters pertaining to Maintenance Services for such Covered Product line and shall provide their contact information to Itron’s customer account representative. Primary Services Contacts shall promptly report problems with Covered Products by submitting a Service Request for entry into Itron’s support tracking system. Although it is Customer’s sole right to choose its Primary Services Contacts, Customer and Itron acknowledge that each Primary Services Contact must have the appropriate technical skills and training for the position. If Customer replaces a Primary Services Contact, Customer will provide updated contact information to Itron’s customer account representative, and the new Primary Services Contact will be properly trained prior to interfacing with Itron support personnel. b. Training of Principal Services Contacts.
Before a Primary Services Contact interfaces with Itron support personnel, he/she will attend training sessions offered by Itron, an Itron-approved trainer, or Customer’s training program approved by Itron to ensure that the Primary Services Contact is (i) knowledgeable about operation of the applicable Covered Products, and (ii) qualified to perform problem determination and remedial functions with respect to such Covered Products. Customer may perform Itron-approved training or may engage Itron to perform training of Primary Services Contacts at Itron’s then current rates. Itron will make training sessions available by remote video conference or training will be made available at a location or in a manner mutually agreed by the Parties. Customer shall be responsible for all Customer’s associated travel-related expenses and, if the Parties agree that training will be provided at a location other than an Itron-designated facility (e.g., at a Customer-proposed facility), Customer will also reimburse Itron’s travel-related expenses. The Primary Services Contacts must have the skills and capabilities to train other Customer personnel on Covered Products. Itron may update Covered Product training from time to time and, upon receiving notice of such 00047596.0
Itron Master Sales Agreement Page 21 of 60 Itron Confidential updates from Itron, Customer shall promptly provide such training to its Primary Services Contacts in accordance with this Section.
5. Global Support Services & Service Requests.
a. Global Support Services.
Itron will make support representatives available to provide technical support during its then current normal business hours as set forth in the Product Contact Information Sheet included within the Client Services Guidelines Document. Global Support Services include troubleshooting & problem diagnosis relating to Covered Products; release or system management consulting; and recommendations for fully utilizing Covered Products.
Customer acknowledges and agrees that Global Support Services are not intended as a substitute for training of Customer personnel, field support, or Itron professional services.
Nor will Customer use Global Support Services in lieu of having qualified and trained support personnel of its own.
b. Service Request Process.
Customer shall submit Service Requests in the manner required by the Client Services Guidelines Documents and Service Levels. Customer may submit Service Requests on a 24/7/365 basis and Itron will respond to such Service Requests in accordance with the Service Levels. When Customer submits a Service Request, Customer will reasonably assess its urgency according to the appropriate Severity Level in Attachment A-1 to this Addendum. Itron will designate the initial Severity Level and the Parties will resolve any perceived gap regarding the Severity Level designation as soon as is reasonably practical. c. Field Support.
At Customer’s request, and Itron’s approval, Itron will dispatch support personnel to Customer’s location to provide onsite Global Support Services (“Requested Field Support”) related to a reported problem which cannot be addressed remotely. Requested Field Support will be billed at Itron’s then-current rates, and Customer will reimburse Itron’s travel-related expenses, unless the cause of the reported problem is found to be the fault of Itron.
6. Itron Firmware and Software Maintenance.
a. Scope.
Firmware Maintenance Services covers its associated Covered Firmware embedded within the applicable communicating device. Software Maintenance Services covers its associated Covered Software sold as any of the following: (i) on premise software license, and (ii) Software-as-a-Service or SaaS Hybrid subscription for software residing in the Itron cloud. b. Modifications.
Itron may modify or replace Covered Firmware and Covered Software so long as such modifications or replacements do not eliminate key, documented functionality provided by the most current System Release.
c. Fixes.
Itron shall provide Fixes in accordance with the Service Levels. Itron’s obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron 00047596.0
Itron Master Sales Agreement Page 22 of 60 Itron Confidential within the applicable Response Time, (iii) assigning only qualified personnel to help Itron address the Error, and (iv) providing all information, access, and assistance reasonably requested by Itron to address the Error.
d. Improvements.
Itron shall provide Improvements, if any, at no charge to Customer if such Improvements are made within the current product specifications and are made available to Itron customers generally at no charge. Improvements released as new add-on modules/features and not part of the products original specifications, may require additional licensing and support fees and will be made available at Itron’s then current rates. e. Software Releases.
i. Release Numbering Convention.
Upgrades, Fixes and/or Improvements are made available to customers through periodic Software Releases. For informational purposes, Itron’s current practice (which may be changed by product, at any time in Itron’s discretion) is to provide Software Releases using the numbering guideline, "X.X.X.X"
ii. The first place, "X.X.X.X", in Itron’s numbering convention refers to a "Major Release”, or “System Release", which consists of a new version of Covered Software. A Major Release may include architectural changes, Improvements, Fixes and / or interfaces to new functional modules or platforms. A Major release may require infrastructure or component updates which affect compatibility with previous release versions.
iii. The second place, "X.X.X.X", in Itron’s numbering convention refers to a "Minor Release, which is an update to a current Major Release. A Minor Release may include consolidation of previous Service Packs, Improvements, Fixes, platform / 3rd party updates. Minor Release are provided to Itron customers on a regularly scheduled basis. iv. The third place "X.X.X.X", in Itron’s numbering convention refers to a "Service Pack, which is an update to specific modules found in a current Major Release. A Service Pack may include Fixes to Severity 1 - Severity 4 issues for a specified Minor or Major Release. v. The fourth place, "X.X.X.X", in Itron’s numbering convention refers to a "Hot Fix," which is an un-scheduled release provided to one or more customers as a short-term, temporary fix to a critical Severity Level 1 Error. While not utilized by all Itron software product lines, Hot Fix releases are not made available to Itron customers generally but may be included in the next scheduled Minor Release or Service Pack for general release.
f. Support for Covered Firmware.
Itron will only provide Maintenance Services for Covered Firmware if Customer: (i) is current on all applicable fees for such Maintenance Services, (ii) tests and installs the latest Covered Firmware Fix within twelve (12) months of being made available to Customer, and (ii) tests and installs the latest Covered Firmware Improvement within twenty-four (24) months of being made available by Itron.
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Itron Master Sales Agreement Page 23 of 60 Itron Confidential g. Support for On Premise Itron Enterprise Edition and OpenWay Software.
Itron will only provide Maintenance Services for on premise Itron Enterprise Edition and OpenWay software if Customer: (i) pays the applicable fees for such Maintenance Services, (ii) tests and installs Service Pack Releases associated with the Major or Minor Release in use by Customer within twelve (12) months of such Service Pack Releases being made available to Customer, and (iii) tests and installs the latest Major or Minor Releases within twenty-four (24) months to thirty-six (36) months of such Software Release being made available by Itron.
h. Support for Other On Premise Covered Software.
Itron will only provide Maintenance Services for other on premise Covered Software if Customer: (i) pays the applicable fees for such Maintenance Services, and (ii) tests and installs Major, Minor and Service Pack Releases within twelve (12) months of such Software Releases being made available by Itron.
i. Support for SaaS or IaaS.
Itron will only provide Maintenance Services for Covered Software sold as a Software-as-aService or Hybrid SaaS subscription if Customer: (i) is current on all applicable fees for such Software-as-a-Service or SaaS Hybrid subscription and related Maintenance Services, and (ii) tests a Release as installed by Itron either in Customer’s production Software-as-aService or Hybrid SaaS environment, or in Customer’s funded non-production Software-asa-Service or Hybrid SaaS environment, prior to Customer’s full production use of the Release.
j. Support for Unsupported Itron Software and Firmware.
At Customer’s request, Itron may elect to provide Maintenance Services for an unsupported Release at its then-current rates.
k. Mandatory Revisions.
Customer must install all software and firmware updates, patches, and service packages provided by, or as directed by, Itron from time to time and which may be required to correct errors, vulnerabilities, third-party concerns, or as otherwise necessary to ensure proper functioning of the Covered Software or to protect the interests of the Parties (“Mandatory Revisions”). ITRON IS NOT LIABILE FOR ANY CUSTOMER OR THIRD-PARTY DAMAGES RESULTING FROM CUSTOMER’S FAILURE TO INSTALL ANY MANDATORY REVISION IN A TIMELY MANNER.
l. Installation Services for On Premise Releases.
Maintenance Services for on premise Covered Software and Covered Firmware includes the following Release installation services: limited, remote consulting support, during standard business hours, for Covered Software and Covered Firmware on Itron-approved server configurations for one production server and one non-production server (test, training, or back-up – for example) owned / operated by Customer. At Customer’s request, Itron may provide on premise Software Release installation services for System Releases or Service Packs on current certified production servers, additional production servers or nonproduction servers, at its then-current rates. Itron will install Releases to Covered 00047596.0
Itron Master Sales Agreement Page 24 of 60 Itron Confidential Software sold as a Software-as-a-Service or Infrastructure-as-Service subscription in accordance with the applicable terms and conditions for such services. m. Restoring Firmware or Software to Maintenance Services.
If Customer declines or discontinues Maintenance Services for Covered Firmware or Covered Software and thereafter wishes to resume such Maintenance Services for the most recent Release of that Covered Firmware or Covered Software, Customer shall, prior to receiving Maintenance Services, notify Itron in writing of its request for Maintenance Services and pay Itron’s then-current re-initiation fee, which shall not exceed an amount equal to all Annual Fees that would have been invoiced for the applicable Covered Firmware or Covered Software if Customer had not elected to decline or discontinue Maintenance Services for that Covered Firmware or Covered Software, plus a five percent (5%) markup, in addition to prorated Annual Fees for the then-current Maintenance Billing Cycle. n. Exclusions.
Itron shall have no obligation to provide Maintenance Services for, or liability to Customer for Covered Software adversely affected by (i) use of Covered Firmware or Covered Software by anyone other than Itron in combination with software, equipment, or communications networks not referenced in the Documentation as being compatible with the Covered Firmware or Covered Software; (ii) modification or recompiling of Covered Firmware or Covered Software or Covered Software installation instructions / installation scripts or database schema scripts, or improper installation of a Release, by anyone other than Itron, (iii) failure to perform customer responsibilities describe in this Addendum, (iv) use of an unsupported version of Covered Firmware or Covered Software by anyone other than Itron; (v) Customer’s failure to implement a Mandatory Revision; (vi) maintenance and/or support of Covered Firmware or Covered Products other than by Itron; or (vii) viruses introduced through no fault of Itron.
o. Documentation and Backup.
Itron will make an electronic copy of the Documentation available to Customer at no additional charge via physical media or download access. Itron will also maintain a copy of its most recent supported version of executable Covered Firmware and on premise Covered Software to be made available to Customer or installed by Itron as necessary in the event of corrupted or inoperative Covered Firmware or on premise Covered Software. Said copy of executable Covered Firmware or on premise Covered Software or Third-Party software does not relieve Customer of its responsibility to backup and managed its Covered Firmware or on-premise software installation as part of ongoing system operation. p. Customer Responsibilities.
The provision of Maintenance Services for Covered Firmware or Covered Software by Itron assumes that Customer will facilitate such services as follows:
i. Service Requests.
Customer will support Itron investigation and restoration efforts as defined in the Service Level table and will act upon / implement support solutions and workarounds recommended by Itron in a timely fashion. When escalating a Service Request with Itron, Customer’s Primary Service Contact shall collect and provide all data logs, findings, analysis, and any 00047596.0
Itron Master Sales Agreement Page 25 of 60 Itron Confidential relevant forensic information pertaining to the issue as outlined in Client Services Guideline Documents.
ii. Data Review.
If Itron determines that it is necessary to evaluate Customer data to reproduce error conditions not reproducible with Itron’s standard test data sets, Customer will provide Itron with reasonable access to such data. Itron shall not be liable for any delay or failure to resolve the problem if access to such Customer data is denied to Itron. iii. Installation and Upgrades.
Customer will engage Itron Global Support Services or their Itron account team for any Covered Firmware or on premise Covered Software installations and upgrades which require support beyond that provided herein.
iv. Remote Access.
Customer is responsible for supporting necessary remote access to Covered Firmware or on premise Covered Software by Itron support personnel assigned to provide Maintenance Services for purposes of remote diagnosis and troubleshooting of Covered Firmware or on premise Covered Software. Itron shall not be liable for any delay or failure to resolve a problem if remote access to Covered Firmware or on premise Covered Software is denied to Itron.
v. System Configuration,
Operation and Maintenance. Customer is responsible for the configuration, operation, and maintenance of equipment, system peripherals, operating system, and data communications environment associated with on premise Covered Software. These activities include but are not limited to checking audit logs, clearing discovered exceptions, and performing daily, weekly, and monthly operational tasks and systems responsibilities.
Customer is responsible for any change made to Customer’s software system, operating system, database or network configuration or any change to installation procedures, scripts, or any other provisions that materially affect the usability or operation of on premise Covered Software. Customer will consult with Itron prior to making any material changes that may affect the installation or operation of on premise Covered Software. vi. Network Administration.
Customer is responsible to monitor and maintain, repair, replace and upgrade its local, and wide area network components (if any)—including network servers, network clients, network hubs, routers, modems, and other software components necessary for efficient and reliable network operations associated with Covered Firmware or on premise Covered Software—to ensure continued conformance with the applicable published Itron specifications. In addition, Customer is responsible to administer related host names, Internet Protocol addresses, network interfaces, access, security, communications, and equipment and software version control.
vii. Database Administration.
Customer is responsible to administer the agreed upon database(s) associated with on premise Covered Software, including hardware and software components, in accordance with the Documentation, which administration shall include, monitoring the database server, backing up electrical power sources, and configuring and administering of database schema, 00047596.0
Itron Master Sales Agreement Page 26 of 60 Itron Confidential application interfaces, networking operating system, communications, and file transfer software. Customer is responsible to maintain database files (e.g., truncate, cleanup, and delete files consistent with industry standard practices) and perform regular data backup and data archiving.
7. Itron Equipment Maintenance.
a. Preventive and Corrective Maintenance.
Upon receipt of an item of Covered Equipment, Itron shall (i) perform preventative Maintenance Services necessary to maintain the Covered Equipment in Operating Condition, and (ii) diagnose and correct any failure in the Covered Equipment as necessary to meet Operating Condition, excluding minor cosmetic deficiencies such as blemishes, dents or scratches.
b. Maintenance Procedures.
Customer shall initiate a request for Maintenance Services for Covered Equipment by delivering the Covered Equipment to the applicable Itron Certified Repair Center identified on the Itron Equipment Repair Table. Return of Covered Equipment shall be at Customer’s expense and in accordance with Itron’s then-current Return Material Authorization (“RMA”) procedures. Upon receipt of Covered Equipment (with the required information) under Itron’s RMA procedures, Itron shall assess the item to determine (a) whether it is in fact Covered Equipment and (b) whether the maintenance requested is included within the Maintenance Services ordered by Customer and not otherwise excluded from coverage. If the returned equipment is determined to be Covered Equipment and the maintenance requested is included in the Maintenance Services ordered by Customer, Itron shall provide the applicable Maintenance Services and return the item of Covered Itron Equipment to Customer at Itron’s expense within the applicable turnaround time identified on the Itron Equipment Repair Table. If Itron determines that returned equipment is not Covered Equipment or is excluded from the Maintenance Services ordered by Customer, then Itron will proceed in accordance with the estimation fees section below. c. Exclusions.
Covered Equipment Maintenance Services do not include repairs related to: (i) damage due to accident, abuse, misuse, inadequate maintenance, problems caused by electrical power surges or acts of God outside of the tolerances set forth in the applicable published Itron specifications; (ii) service or repair processes (including installation or de-installation of equipment, parts, or firmware/software) not performed or authorized by Itron; (iii) use of parts, configurations or repair depots not certified or authorized by Itron; or (iv) Customer’s failure to perform material Customer responsibilities in accordance with this Addendum, including caring for Covered Equipment in accordance with applicable Documentation. d. Estimation Fees.
Itron will provide Customer with a price quote for the estimated cost (including current inspection fees), including labor, materials and shipping, for any repairs to equipment that are requested, which Itron determines are excluded from or not included within the Maintenance Services ordered by Customer. If Customer elects not to proceed with the 00047596.0
Itron Master Sales Agreement Page 27 of 60 Itron Confidential requested repair, Itron will return the item of equipment at Customer’s expense and Itron may charge Customer its then-current inspection fee.
e. Adding/Restoring Equipment to Maintenance Services.
Following the Effective Date, additional Covered Equipment purchased by Customer, of a similar type and model already covered under this Addendum, shall automatically be deemed to be Covered Equipment following the M&S Commencement Date. If Customer declines or discontinues Maintenance Services for any Covered Equipment and thereafter wishes to add or restore such equipment as Covered Equipment, Itron may, prior to such equipment being included as Covered Equipment, inspect such equipment at Itron’s then current rates to determine whether it is in Operating Condition and/or charge Itron’s then current re-certification fee, in addition to prorated Annual Fees for the then-current Maintenance Billing Cycle (the “Re-initiation Costs”). At Customer’s request, Itron will provide Customer with a quote for estimated Re-initiation Costs for equipment that Customer wishes to add or restore as Covered Equipment under this section. f. Equipment Responsibilities.
Itron shall make available, and Customer shall obtain, a copy of the Documentation for Covered Equipment and Customer will be responsible to perform preventive maintenance for each such item in accordance with such Documentation. Customer shall also keep accurate records of Covered Equipment serial numbers and locations to assist Itron with performing Maintenance Services
8. Fees and Invoicing.
As compensation for the Maintenance Services, Customer shall, in advance, pay to Itron Annual Fees for each Maintenance Billing Cycle in which it receives Maintenance Services.
Itron shall invoice Customer for Maintenance Services to be provided during the first Maintenance Billing Cycle as soon as practicable following the Effective Date. For Maintenance Services provided during any subsequent Maintenance Billing Cycle, including Maintenance Services for newly purchased or licensed Covered Products, Itron shall provide Customer with a renewal notice at least 120 days prior to the commencement of each Maintenance Billing Cycle. Customer may discontinue Maintenance Services for any Covered Product(s) by providing Itron with written notice of non-renewal for such Covered Product(s) no less than 90 days prior to the commencement of any subsequent Maintenance Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each subsequent Maintenance Billing Cycle, Itron shall provide Customer with an invoice for Annual Fees payable by Customer for the forthcoming Maintenance Billing Cycle. Itron may, in its discretion, invoice Customer for Maintenance Services for a Covered Product that is added during any Maintenance Billing Cycle as soon as such Maintenance Services have been added (at a prorated amount) or at the beginning of the next Maintenance Billing Cycle. The Annual Fee for any partial Maintenance Billing Cycle (i.e., for Covered Products with a Maintenance Commencement Date or an increase in the applicable Annual Fees that falls after the beginning of the Maintenance Billing Cycle) shall be prorated based on the applicable M&S Commencement Date or Annual Fee increase date and the remaining number of months Customer is to receive Maintenance Services during such Maintenance Billing Cycle.
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Itron Master Sales Agreement Page 28 of 60 Itron Confidential
9. Support for Third Party Products.
Itron shall provide first tier Global Support Services for Third Party Covered Products by handling all Customer inquiries, attempting to identify the component involved in the problem and obtaining appropriate documentation of such inquiry or problem. In addition, Itron shall make commercially reasonable efforts to facilitate Customer’s receipt of maintenance and support for such Third-Party Covered Products consistent with the thirdparty maintenance terms identified on the applicable Order Document. Notwithstanding anything else to the contrary, Itron’s sole obligation under this Addendum with respect to Third Party Covered Products shall be as set forth in this section.
10.Survival.
The following sections of this Addendum shall survive termination or expiration of this Agreement or any Order Document or Statement of Work: Section 3 (End of Support), 6.14 (Exclusions), 7.3 (Exclusions), Section 8 (Fees and Invoicing) and 10 (Survival). 00047596.0
Itron Master Sales Agreement Page 29 of 60 Itron Confidential Attachment 1 to Maintenance & Support Services Addendum – Software Maintenance & Support Service Levels –
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Itron Master Sales Agreement Page 30 of 60 Itron Confidential Severity Level Response Times Effort Level and
Restoration
Escalation
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Itron Master Sales Agreement Page 31 of 60 Itron Confidential Severity Level 1*
Business Impact:
Critical Impact /
System Down. A
Production System
Error for which there
is no work-around,
which causes
Covered Firmware
or Covered Software
Product or a critical
business function /
process of said
product to be
unavailable such
that system
operation cannot
continue.
Example: a) Billing
cannot be
completed, b) Major
documented
function not
working, c) System
hung or completely
down
During regular
business-hours Itron
will begin the Service
Request process
during Customer’s
initial call.
During after-hour
periods, Itron will
respond to a critical
support voice
messages within 15
minutes by a return
call to Customer, to
validate receipt of the
critical support call
and begin the Service
Request process.
Following the start of
the Service Request
process Itron will
respond to
Customer’s Service
Request within two
(2) business hours
with an investigation
response.
Itron will update
Customer at three (3)
hour intervals during
each day the Service
Request remains
unresolved, or as
otherwise agreed by
the Parties.
Customer will respond
to an Itron inquiry or
request within three
(3) hours.
Itron will make diligent
efforts on a 24x7
basis, or as otherwise
agreed by the Parties,
to:
i) restore Covered
Firmware or Covered
Software with a
change to eliminate
root cause, ii) provide
a workaround which
restores Covered
Firmware or Covered
Software and
downgrades the
Severity Level to S2,
S3, S4.
Customer Support
Staff must be available
24x7 to work
cooperatively with
Itron continuously until
such time restoration
is achieved.
An unresolved Service
Request shall be
escalated to Itron
management as
follows:
After 30 minutes:
Technical Customer
Support Team Lead
After 8 hours:
Manager, Technical
Client Services
After 16 hours:
Director, Global
Support Services
After 48 hours:
Service Request. Vice
President, Services
and Delivery
After 72 hours:
President, Itron
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Itron Master Sales Agreement Page 32 of 60 Itron Confidential Severity Level 2*
Business Impact:
Major impact,
degraded
Operation. An Error
other than a
Severity Level 1
Error, for which
there is no workaround, which
degrades or limits
operation of major
system functions
causing Covered
Firmware or
Covered Software to
miss required
business interface or
deadlines. Covered
Firmware or
Covered Software
remains available
for operation but in
a highly restricted
fashion.
Example: a) Billing
cannot be
completed on time,
b) Major function is
operating outside
documented timing
/ term, c) Covered
Firmware or
Covered Software
operating slow,
missing data, data
delivery, daily
mission.
During regular
business-hours Itron
will respond to
Customer regarding
Service Request
within one (1)
business day.
While Service Request
remains unresolved,
Itron will update the
Customer and the
Service Request at
least every other
business day, or as
otherwise agreed by
the parties.
Customer will respond
to an Itron inquiry or
request within one (1)
business day.
Itron will make diligent
efforts during normal
business hours to:
i) restore Covered
Firmware or Covered
Software with a
change to eliminate
root cause, ii) a
workaround which
restores Covered
Firmware or Covered
Software and
downgrade the
Severity Level to S3,
S4.
An unresolved Service
Request shall be
escalated to Itron
management as
follows:
After 1 hours:
Technical Customer
Support Team Lead
After 8 hours:
Manager, Technical
Client Services
After 24 hours:
Director, Global
Support Services
After 30 Days:
Vice President,
Services and Delivery
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Itron Master Sales Agreement Page 33 of 60 Itron Confidential Severity Level Response Times Effort Level and
Restoration
Escalation
Severity Level 3**
Business Impact:
Minor Business
Impact,
compromised
operations. An
Error other than a
Severity Level 1 or
Severity Level 2
Error that has
moderate impact on
use of or access,
with low business
impact, but not
preventing
Customer from
performing daily
activities.
Example: The
Service Request
affects use by
Covered Firmware
or Covered Software
users, allowing
Customer’s
functions to
continue to meet
daily business
needs.
During regular
business-hours Itron
will respond to
Customer regarding
Service Request
within two (2)
business days.
While Service Request
remains unresolved,
Itron will update the
Service Request
weekly, or as
otherwise agreed by
the parties.
Customer will respond
to an Itron inquiry or
request within two (2)
business days.
Itron will work during
normal business hours
to:
i) restore Covered
Firmware or Covered
Software with a
change to eliminate
root cause, ii) a
workaround which
restores Covered
Firmware or Covered
Software and
downgrades the
Severity Level to S4.
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Itron Master Sales Agreement Page 34 of 60 Itron Confidential Severity Level Response Times Effort Level and
Restoration
Escalation
Severity Level 4
Business Impact:
Standard
Operations intact.
A low or no-impact
Error other than a
Severity Level 1,
Severity Level 2 or
Severity Level 3
Error, or a request
for enhancement /
new functionality
Example:
Generally, a
cosmetic Error or an
Error which does not
degrade Customer’s
use of the product
or system.
During regular
business-hours Itron
will respond to
Customer regarding
Service Request
within three (3)
business days.
Itron GSS
Management Team will
make commercially
reasonable efforts
during normal business
hours to understand
the Service Request
and provide applicable
recommendations as
to when a Fix may be
schedule in a future
release, or how to
proceed with a formal
enhancement request
to Itron’s product and
delivery teams.
* Severity Level 1 and Severity Level 2 must be reported by phone to insure they are addressed under the appropriate severity level response process. Service Requests entered by email or Web access are generally addressed as a Severity Level 3. ** Service Request opened on Non-production servers / environments are entered as a Severity Level 3.
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Itron Master Sales Agreement Page 35 of 60 Itron Confidential
SOFTWARE ADDENDUM
1 Relationship to General Terms and Conditions.
This Addendum is subject to the General Terms and Conditions and applicable Order Documents. 2 Additional Definitions.
The following defined terms are in addition to those defined in the General Terms and Conditions:
Authorized Installations means installations of Itron Software only on one production environment and one test environment on Customer premises.
Endpoints means a physical device (e.g., a meter, encoder-receiver-transmitter module, or other measuring, monitoring or sensing device) capable of being used in connection with Itron Software.
Itron Software means the machine readable (object code) version of computer programs listed on an Order Document to be licensed to Customer under this Agreement that are developed by or on behalf of Itron.
License Term means the duration of the Itron Software license granted by Itron to Customer under this Addendum.
Software means Itron Software and Third-Party Software.
Software Warranty Period means a period of 90 days from the date of delivery, unless otherwise specified in the applicable Order Document.
Third-Party Software means the machine readable (object code) version of computer programs listed on an Order Document to be licensed to Customer by a third-party and that are not developed by or on Itron’s behalf.
3 Ordering Software.
Customer shall order Software by issuing a Purchase Order to Itron in accordance with this Agreement. 4 Invoicing.
Itron will invoice Customer for Fees due for Software upon the date of delivery. 5 Itron Software License.
Subject to Customer’s payment of all applicable Fees and compliance with this Agreement, Itron hereby grants to Customer a non-exclusive and non-transferable license during the License Term to use Authorized Installations of Itron Software and related Documentation for Customer’s internal business purposes solely i) within the Territory ii)in connection with the number of Endpoints or other devices specified on the applicable Order Document; and iii) in accordance with any other restrictions specified on the applicable Order Document. Customer is not permitted to copy Itron Software other than to make one machine readable copy for disaster recovery or archival purposes. 6 Third-Party Software.
All Third-Party Software and related documentation is separately licensed to customer by the applicable third-party, and Customer’s rights and responsibilities with respect to such software or documentation shall be governed in accordance with the third-party licensor’s applicable software license. If Customer chooses to order Third Party Software, Customer shall enter into or accept one or more separate thirdparty agreements as part of the ordering, fulfilment, installation and/or download processes for such Third Party Software.
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Itron Master Sales Agreement Page 36 of 60 Itron Confidential 7 Documentation.
Itron will make its standard Documentation for Itron Software available via download. Itron will provide Customer with download instructions.
8 Itron Software License Restrictions.
Customer is not permitted to (i) modify or create any derivative works from Itron Software, (ii) distribute the Itron Software, (iii) include or combine Itron Software with any software, equipment, or hardware other than as expressly authorized in writing by Itron, (iv) use Itron Software to provide services to third-parties, (v) reverse assemble, decompile, reverse engineer Itron Software or otherwise attempt to derive its source code except as may be permitted by applicable law, (vi) export Itron Software out of the Territory, or (vii) use any Itron Software to create products or services that compete with any of Itron’s products or services. Customer’s breach of these restrictions or use of Itron Software or Documentation other than as licensed hereunder shall constitute a material breach of this Agreement and shall result in revocation and immediate termination of all rights and licenses granted under this Agreement. Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
9 U.S. Government Contracts Only.
If a Software license is acquired under a United States government contract, Customer acknowledges that Software, Updates and associated Documentation (i) are "Commercial Computer Software" as defined in 48 C.F.R. 12.212 of the Federal Acquisition Regulations (FAR) and in 48 C.F.R. 227.7014(a)(i) of the Department of Defense Federal Acquisition Regulations Supplement (DFARS), and (ii) are provided with only the commercial rights and subject to the restrictions described in this Agreement. 10 Limited Itron Software Warranty.
For the Software Warranty Period, Itron warrants solely to Customer that the Itron Software will substantially conform in all material respects to the applicable Itron published specifications. As Customer’s sole and exclusive remedy for any breach of this warranty, Itron will, at its option, during the warranty period set forth in this section, repair or replace non-conforming Itron Software to substantially conform to the foregoing warranty, provided that Itron will have no obligation to repair or replace any non-conforming Itron Software if this Agreement or applicable Order Document has terminated or expired. The foregoing warranty does not apply to non-conformities in Itron Software due to: (i) modifications not made or approved by Itron in writing; (ii) Customer’s or any third party’s negligence or intentional acts; (iii) misuse or abuse, including the failure to use or install Itron Software in accordance with the Documentation; (iv) incorrect data, or data entry or output, as applicable, by Customer or a third party; (v) use with third party software, hardware or firmware not provided or authorized by Itron in writing; (vi) a Force Majeure event; or (vii) viruses or security vulnerabilities introduced into the Itron Software or Customer’s systems through no fault of Itron. After the ninety (90) day period described above, any Itron Software errors will be addressed under maintenance and support terms.
11 Effect of Expiration or Termination for Cause.
Upon termination of an Itron Software license for cause or expiration of a License Term, whichever occurs first, Customer shall immediately discontinue use of the applicable Itron Software and related Documentation, and Customer will destroy or return to Itron any and all copies. Upon Itron’s request, Customer will confirm in writing that Customer has destroyed or has returned Itron Software and related Documentation in compliance with this section. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other files or materials. Termination of an Itron Software license for cause will not restrict Itron from 00047596.0
Itron Master Sales Agreement Page 37 of 60 Itron Confidential pursuing any other remedies available to it, including injunctive relief, nor will it relieve Customer of its obligation to pay all fees that accrued prior to such termination. 12 Third-Party Software Warranty.
Itron is not the owner of Third-Party Software and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of any Third-Party Software. ThirdParty Software shall be subject to any warranties provided by the Third-Party Software provider. Itron will pass through to Customer, or make commercially reasonable efforts to enforce on Customer’s behalf, any warranties and remedies received from the Third Party Software provider. 13 License Use Verification & Audit.
13.1 License Use Verification.
Promptly upon Itron’s written request, and no more than once annually, Customer must furnish Itron with a letter signed by an officer of Customer, verifying that Itron Software is being used by Customer in compliance with the licenses granted, and confirming the number, identification, type and location of Endpoints and other devices being managed by Customer using Itron Software.
13.2 Audit.
Itron has the right to audit Customer records to verify the number of Endpoints and other devices being managed by Customer using Itron Software and otherwise confirm Customer's compliance with license restrictions and Fee obligations of this Agreement. Itron must provide Customer with at least thirty (30) days prior written notice of the audit. The audit must be conducted during Customer’s normal business hours at a mutually agreeable location. Itron’s right to conduct an audit under this section is limited to one time per year, unless Itron has reason to believe that Customer is out of compliance with the license restrictions and Fee obligations of this Agreement. Itron has the right to use an independent auditor to conduct the audit. The audit shall be at Itron’s sole cost and expense, unless the audit identifies a deficiency in Fees or other amounts owed or reimbursable by Customer during the audited period that is greater than five percent (5%) of the total amounts payable by Customer – in which case Customer must reimburse Itron for all reasonable costs of the audit. All amounts found to be owed by Customer under this Section will be payable within thirty (30) days after receipt of invoice from Itron. 14 Survival.
The following sections of this Addendum shall survive termination or expiration of this Agreement or any Order Document or Statement of Work: 1 (Relationship to General Terms and Conditions), 2 (Additional Definitions), 4 (Invoicing), 5 (Itron Software License) except to the extent applicable license rights expire or are terminated in accordance with this Agreement, 6 (Third-Party Software), 8 (Itron Software License Restrictions), 9 (U.S. Government Contracts Only), 10 (Limited Itron Software Warranty), 11 (Effect of Termination for Cause), 12 (Itron Disclaimer of Third-Party Software Warranty), 13 (License Use Verification & Audit) and 14 (Survival). 00047596.0
Itron Master Sales Agreement Page 38 of 60 Itron Confidential Software-AS-A-Service ADDENDUM
General SaaS Terms and Conditions
1.1.1. Relationship to General Terms and Conditions.
This Software-as-a-Service Addendum (this “Addendum”) is governed by the General Terms and Conditions of this Agreement and applicable Order Documents.
2.1.1. Entire Addendum.
This Addendum consists of these General SaaS Terms and Conditions, which generally apply to all Service Offerings, and any attached Special Terms and Conditions, which apply to specific Service Offerings. Unless otherwise provided, references to this Addendum shall be deemed to encompass these General SaaS Terms and Conditions and any attached Special Terms and Conditions.
3.1.1. Order of Precedence.
In the event of any inconsistencies, ambiguities or conflicts between these General SaaS Terms and Conditions and the Special Terms and Conditions, the Special Terms and Conditions shall prevail, but only with respect to the applicable Service Offering.
4.1.1. Definitions.
The following defined terms are in addition to those defined in the General Terms and Conditions of this Agreement:
Annual Adjustment means Itron’s annual price increase.
Endpoint means an electric meter, gas or water endpoint receiver-transmitter, battery-powered device, or any other device that Itron has agreed to monitor as part of a Service Offering which Endpoints are identified in the Order Document or Pricing Summary.
General SaaS Terms and Conditions means the terms and conditions set forth in the main body of this Addendum comprised of Sections 1 (“Relationship to General Terms and Conditions”) through 19 (“Roles and Responsibilities”).
Maintenance Services means services provided under the Maintenance and Support Services Addendum.
Minimum Subscription Term means the minimum number of SaaS Billing Cycles during which Customer is required to subscribe for each Service Offering, which shall be three (3) SaaS Billing Cycles following the applicable Service Offering Commencement Date, unless otherwise stated in the applicable Order Document or Pricing Summary.
One-Time Setup Fee means the one-time setup fee for each Service Offering identified in the applicable Order Document or Pricing Summary.
Recovery Point Objective or RPO means the maximum tolerable time period which data might be lost from production Software due to a service interruption event.
Recovery Time Objective or RTO means the duration of time allowing for the execution of all failover processes required to return access, connectivity, functionality, and operation of production Software to Customer following declaration of a disaster event.
SaaS means software-as-a-service whereby Itron or its designated provider hosts and provides Customer with access to Software on Servers via the internet. 00047596.0
Itron Master Sales Agreement Page 39 of 60 Itron Confidential SaaS Billing Cycle means a period of one year beginning on the Effective Date or any anniversary thereof.
SaaS Application Availability means the total number of minutes in a calendar month that the applicable Software is available via (a) a web browser client, (b) web services interface and (c) thin client. Scheduled downtime is excluded from this calculation. A determination of availability will be based on 24x7 accessibility, less any exclusions set forth in this Addendum.
Servers means the physical computer hardware owned by Itron or its designated provider on which Software will be installed, operated, and maintained.
Service Offering means SaaS, plus any services that are additional or supplemental to SaaS, as described in the applicable Special Terms and Conditions.
Service Offering Commencement Date means, with respect to each Service Offering, the earlier of (a) validation of such Service Offering implementation by Itron pursuant to the applicable Statement of Work, or (b) seven (7) days after completing application system setup and the Customer has been provided valid access credentials for such Service Offering.
Software means each machine readable (object code) versions of computer program identified on the applicable Order Document or Pricing Summary for which Customer has purchased a Service Offering.
Special Terms and Conditions means Service Offering-specific terms and conditions set forth on Attachment A to this Addendum.
Subscription Fees means annual fees identified in the applicable Order Document or Pricing Summary for each Service Offering, plus the Annual Adjustment, if any. Where Customer has purchased an object code license to Software pursuant to the terms of the Software Addendum and wishes to purchase a Service Offering for such Software (“Hybrid SaaS”), license fees and fees for applicable Maintenance Services are not included within the Subscription Fees and must be paid separately. Where Customer is not purchasing Hybrid SaaS, fees for applicable Maintenance Services are included within the Subscription Fees.
Subscription Term means the subscription term purchased by Customer for each Service Offering, which begins upon the applicable Service Offering Commencement Date.
5.1.1. Access Rights and Restrictions.
a. Access Rights.
SaaS is only available for Itron Software identified in the table set forth in this Section 5.1 below for which Customer has purchased a Service Offering and paid all applicable fees. Subject to Customer’s compliance with the Agreement (including payment of all applicable fees which, in the case of Hybrid SaaS, shall include Software licensing fees and Maintenance Services support fees), Itron hereby grants to Customer, for the Subscription Term(s) purchased, a non-exclusive, nontransferable, non-assignable, limited right to access and use the Service Offerings, with respect to Endpoints owned or otherwise controlled by Customer, for its internal business purposes in the Territory (as defined in the General Terms and Conditions of the Agreement).
Itron Software Eligible to Receive SaaS
ACE VISION Itron Mobile
Action Manager Mlogonline
ChoiceConnect Fixed Network MV-90 xi
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Itron Master Sales Agreement Page 40 of 60 Itron Confidential Distributed Intelligence (Riva system) MV-PBS
Distributed Intelligence (GenX system) MV-WEB
EMMSYS OpenWay Collection Engine (CE)
Everblu FN (Fixed Network) OpenWay Collection Manager (CM) FCS Operations Optimizer – AMI Operations
FDM Tools Operations Optimizer – Grid Operations
FDM Workorders Operations Optimizer – Network Operations Field Tools Advanced Operations Optimizer – Revenue Assurance Field Tools Basic Operations Optimizer – QuickStart (RA/AMI Ops)
Gas and Water Analytics Performance Manager
Gridscape Saturne
HAN Communications Manager Streetlight Vision
IntelliSOURCE Express Temetra
Itron Enterprise Edition TMS
Itron Enterprise Edition Service Mode
UIQ: Advanced Metering Manager, Meter
Program Configurator, Control Platform,
Outage Detection and SensorIQ
Itron Analytics
b. Restrictions on Use.
Customer and its authorized users may not: (a) modify, translate or create derivative works of any Service Offering or related Documentation; (b) copy, reproduce, distribute, republish, download, display, post or transmit any portion of a Service Offering or related Documentation in any form or by any means; (c) sell, assign, transfer, lease or sublicense any Service Offering; (d) allow any third party, other than authorized users, to access any Service Offering or related Documentation without Itron’s prior written consent; (e) use any Service Offering or related Documentation to provide services to third parties, or otherwise use any Service Offering on a “service bureau” or “timesharing” or subscription basis including, in connection with devices or equipment not owned or otherwise controlled by Customer; (f) reverse engineer, disassemble, decrypt, extract or otherwise reduce any Service Offering to a human perceivable form or otherwise attempt to determine the source code or algorithms of any Service Offering (except to the extent the foregoing restriction is expressly prohibited by applicable law); (g) infringe any of Itron’s or its providers’ Intellectual Property Rights; (h) publicly publish the results of any benchmark tests run on any Service Offering; (i) use any Service Offering or related Documentation to engage in any fraudulent, illegal or unauthorized act; (j) introduce into or transmit through any Service Offering any material containing software viruses, worms, trap doors, back doors, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (k) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of Itron’s or its providers’ Intellectual Property Rights, whether such notice or indications are affixed on, contained in or otherwise connected to a Service Offering; (l) attempt to gain unauthorized access to a Service Offering or Itron’s or its providers’ systems or networks; (m) merge any Service Offering with any other product or service without Itron’s prior written consent and the payment of any additional fees; or (n) access or use any Service Offering or related Documentation to build or support, and/or assist a third-party in building or supporting, products or services competitive to Itron or its providers.
c. Content Restrictions.
Customer may not distribute, download, or place on any Itron or its providers’ website or Server, or use with any Service Offering, any content that: (a) Customer knows or has reason to believe 00047596.0
Itron Master Sales Agreement Page 41 of 60 Itron Confidential infringes the Intellectual Property Rights of any third party or violates any rights of publicity or privacy; (b) violates any applicable law, statute, ordinance; (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; or (d) is obscene, pornographic or indecent (items (a) – (d) are collectively referred to as “Prohibited Content”). Itron reserves the right to remove any Prohibited Content from the Server without prior notice to Customer. Customer will indemnify, defend and hold Itron and its providers harmless for any claims, liabilities, losses, causes of action, damages, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from any third-party claims related to or generated by any Prohibited Content distributed, downloaded, or placed on any Itron or its providers’ website or Server or used with any Service Offering by Customer.
d. Breach of Restrictions.
Customer’s breach of the restrictions set forth in Section 5.2 (“Restrictions on Use”) or Section 5.3 (“Content Restrictions) shall constitute a material breach of the Agreement and shall result in revocation and immediate suspension or termination, as determined by Itron in its sole discretion, of all rights and licenses granted under this Addendum with respect to the Service Offerings.
Revocation does not preclude Itron from pursuing any legal and equitable remedies for Customer’s breach of these restrictions.
6.1.1. Invoicing and Payment.
Customer shall pay Subscription Fees in advance for each SaaS Billing Cycle for which it has purchased a Service Offering. Itron will invoice Customer for the One-Time Setup Fee and initial Subscription Fees for each Service Offering upon the Service Offering Commencement Date. Initial Subscription Fees shall be prorated based on the number of months remaining in the current SaaS Billing Cycle following the Service Offering Commencement Date. Itron may discontinue a Service Offering by providing Customer with written notice of discontinuance no less than 180 days prior to the commencement of a SaaS Billing Cycle. Otherwise, Itron will provide Customer with a renewal notice for the Service Offering at least 120 days prior to the commencement of each SaaS Billing Cycle. Customer may discontinue a Service Offering by providing Itron with written notice of non-renewal no less than 90 days prior to the commencement of a SaaS Billing Cycle. Otherwise, approximately 20 days prior to the commencement of each SaaS Billing Cycle, Itron will provide Customer with an invoice for Subscription Fees payable by Customer for the forthcoming SaaS Billing Cycle. If Customer discontinues a Service Offering prior to expiration of the Minimum Subscription Term for that Service Offering, Itron will invoice Customer, and Customer will pay, for any unpaid Subscription Fees for the respective Service Offering through the end of the applicable Minimum Subscription Term. Maintenance Services fees and license fees relating to Hybrid SaaS will be invoiced in accordance with the Maintenance and Support Services Addendum and Software Addendum, as applicable. Itron has the right to adjust Subscription Fees at any time if Customer’s use of a Service Offering exceeds the applicable tier set forth in the respective Order Document or Pricing Summary. Subscription Fees adjusted as a result of Customer exceeding the applicable tier are typically invoiced within thirty (30) to sixty (60) days after provisioning of each respective Endpoint occurs.
7.1.1. Monthly Application Availability Service Level.
a. Service Level.
Provided Customer has paid all applicable fees (including all Subscription Fees and, in the case of Hybrid SaaS, all maintenance and license fees) SaaS Application Availability with respect to each production environment Service Offering will be at least 99.5%, measured and reported monthly beginning in the first full calendar month following the respective Service Offering Commencement 00047596.0
Itron Master Sales Agreement Page 42 of 60 Itron Confidential Date (“Monthly SaaS Application Availability Service Level”). The Monthly SaaS Application Availability Service Level will be measured and calculated separately for each Service Offering.
Itron records and data will be the sole basis for all SaaS Application Availability Service Level measurements and calculations.
b. Service Level Credits.
As Customer’s sole and exclusive remedy for Itron’s failure to meet the foregoing Monthly SaaS Application Availability Service Level, subject to the service level exclusions in Section 8.1 (Service Level Exclusions) below, Customer will be entitled to credits as follows:
SaaS Application Availability
(production environments only)
Monthly SaaS Application
Availability performance
Credit
(% of monthly Subscription Fee for
applicable SaaS Application)
≥99.0% and <99.5% 2%
≥98.0% and <99.0% 4%
≥96.5% and <98.0% 10%
≥95.0% and <96.5% 12.5%
<95.0% 20%
8.1.1. Service Level Exclusions; Disclaimers.
a. Service Level Exclusions.
Itron shall not be liable for failing to meet any service level commitment set forth in this Addendum (including any Special Terms and Conditions) or any Order Document to the extent such failure is attributable to any one or more of the following: (a) planned maintenance, unplanned maintenance, or scheduled upgrades; (b) an event triggering a disaster recovery and for a twenty-four (24) hour period after the resumption of service following such an event to allow the system to return to normal operating ranges; (c) suspension or restriction of service under Section 11 (“Suspension or Restriction of Service”) of this Addendum; and (d) conditions beyond Itron’s reasonable control, including but not limited to (i) failure of any backhaul between the Service Offering and the Endpoints; (iii) failures in external Internet or VPN configurations not managed by Itron; (iv) a Force Majeure event; (v) false reports of unavailability as a result of outages or errors of any Itron measurement system; (vi) an act or omission of Customer or third parties (other than Itron’s contractors, subcontractors or suppliers), including security incidents caused by such act or omission; (vii) incident investigation or computer failures that could not reasonable have been prevented by Itron; (viii) failures of third-party equipment, hardware, software, or services not provided by Itron; and (ix) Customer’s delay in performing tasks designated as its responsibility in this Agreement.
b. Disclaimers.
(a) Third-Party Content Disclaimer. Itron is not the owner of third-party Software or thirdparty Service Offerings that Customer purchases through Itron (collectively “Third-Party Content”) and makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of any Third-Party Content. Third-Party Content shall be subject to any service levels or warranties provided by the third-party provider. Itron will pass through to Customer, or make commercially reasonable efforts to 00047596.0
Itron Master Sales Agreement Page 43 of 60 Itron Confidential enforce on Customer’s behalf, any service levels, warranties and remedies received from such third-party provider.
(b) Use of SaaS with Third-Party Devices. Customer may use a Service Offering to collect data from Endpoints equipped with radio communication devices not manufactured or provided by Itron ("Third-Party Radio Device"). Itron makes no representations or warranties whatsoever, directly or indirectly, express or implied, as to the suitability, durability, and fitness for use, merchantability, condition, quality, performance or non-infringement of, and disclaims all liability with respect to, Third-Party Radio Devices. In particular, Itron shall have no liability (a) if a Third-Party Radio Device is not responding or communicating or (b) for unread endpoints due to defective or unreachable Third-Party Radio Devices. Customer shall contact the supplier of such device for support.
9.1.1. Sizing of Software-as-a-Service.
Itron will size Service Offerings, Servers, and systems for Customer’s specific deployment. System sizing depends upon the Service Offering and types of devices and sensors and may be a factor in determining Subscription Fees. Sizing criteria may include number of system endpoints, number of network devices, residential meter configuration, commercial and industrial meter configuration, desired data collection intervals, storage duration for historical data, and the number of concurrent and total users of the application. Any sizing changes during a Subscription Term will require a Change Order and may result in a change in Subscription Fees.
10.1.1. Conditions on Use of Service.
Customer will use the Service Offerings only in accordance with Itron user guides, the Agreement (including, this Addendum, the General Terms and Conditions, applicable Order Documents), and laws and government regulations. The rights of any user to access and use the Service Offerings cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user), and Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Service Offerings.
11.1.1. Suspension or Restriction of Service.
Itron may suspend or restrict all or part of the Service Offerings at any time to protect the integrity and functionality of the Software, Servers, platforms, and systems, or for a breach of Section 5.2 (“Restrictions on Use”), Section 5.3 (“Content Restrictions”) or Section 10 (“Conditions on Use of Service”), until such breach is cured.
12.1.1. Incident Management.
Itron will provide Customer support and incident and problem management services, which include responding to alerts, tracking the issue, troubleshooting the problem and escalating to Itron subject matter experts or third-party providers, in accordance with the Maintenance and Support Services Addendum.
13.1.1. Customer Technical Responsibilities.
Customer is responsible for selecting, acquiring, securing and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use and maintain compatibility with the Service Offerings, at Customer’s sole expense.
14.1.1. User IDs and Passwords.
Itron shall provide Customer with user identifications and passwords (“User IDs”) to access the Service Offerings. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to Customer. User IDs may not be shared or used by more than one user.
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Itron Master Sales Agreement Page 44 of 60 Itron Confidential
15.1.1. Planned Maintenance.
Planned maintenance, whenever reasonably practicable, will be performed during off-business hours between 6:00 p.m. to 12:00 a.m. Customer’s local time, with as little disruption to Customer’s use of the Service Offerings as possible. Unplanned maintenance, whenever reasonably practicable, shall also be performed during off-business hours between 6:00 p.m. and 12:00 a.m., Customer’s local time.
16.1.1. Unplanned Maintenance.
Itron will provide Customer with notice of unplanned maintenance as soon as reasonably practical.
Itron will minimize Service Offering disruptions to the extent reasonably practical.
17.1.1. Business Continuity.
a.
Itron has architected and operates a high availability and scalable infrastructure to facilitate virtualized customer environments with various fault tolerant components. Fault tolerance and failover methodologies allow Itron to maximize system availability and confidently uphold the Monthly SaaS Application Availability Service Level and Monthly File Delivery Percentage Service Level. Itron will conduct daily backups of back office application configuration files and associated data. These backups are for operational purposes only and are not a disaster recovery solution or a solution to be used by the Customer for testing or analysis purposes. Itron will periodically test the restore capability of its business continuity solution. System and database backups are performed via a schedule to provide for a full weekly backup and daily differential backups. System backups and snapshots are also taken prior to any system change that has been approved via the Itron Global Managed Services Change Control Board. The system can be recovered from the backup in an event of a failure. Business continuity is designed to provide recovery for component failures within a datacenter, this does not provide coverage for the loss or connectivity to a data center. If a more robust mitigation solution is required by Customer, geo-diverse disaster recovery options can be discussed and priced as a more fault tolerant solution. b.
All incidents requiring system recovery will be required to adhere to Itron’s incident management policy and related standard operating procedures. BUSINESS CONTINUITY: RPO = 72 hours; RTO = 5 business days.
18.1.1. Disaster Recovery.
a.
Disaster Recovery (“DR”) is an optional service that is offered by Itron to hosted customers who purchase DR for an additional fee. Upon Customer’s purchase of DR services and payment of applicable fees as set forth in the Order Document or Pricing Summary, Itron will maintain DR services at a dedicated facility that is equipped to facilitate hosted operations, meter reading and interrogations, and Field Area Network (“FAN”) communications in the event DR is needed. Upon mutual agreement, separate SOW and for identified cost, Itron can exercise the DR capabilities once per calendar year on Customer’s production environments and provide the results of each such test to the Customer.
b.
In the event of a Severity Level 1 Error (as defined in the Maintenance and Support Services Addendum), Itron will evaluate the scale of the incident, readily available mitigation plans, and the 00047596.0
Itron Master Sales Agreement Page 45 of 60 Itron Confidential estimated time to recover. If it is apparent to Itron that an incident meeting the standards of a disaster as set forth in Itron’s Disaster Recovery plan has occurred with no possibility of mitigation, Itron will declare a disaster and begin the notification process. Itron will notify the Customer of an any such event that will result in service interruption in excess of twelve (12) hours. Once a disaster has been declared, Itron’s responsibilities for SLAs will be temporarily suspended until the time at which Customer’s environment has been failed over and is operating in the secondary DR datacenter. The Recovery Point Objective (RPO) for DR is four (4) hours. The Recovery Time Objective (RTO) for DR is twelve (12) hours.
19.1.1. Roles and Responsibilities.
The table below lists the respective responsibilities of Customer and Itron to ensure reliable operation of the Software-as-a-Service.
P=Primary responsibility
S=Support responsibility
Description of service or deliverable Itron Customer
Submit user access requests for new users and deletion notifications for users no longer involved with the SaaS. P
Provide immediate notification in the event of a Customer employee termination for those with access to the SaaS. P
Provide immediate notification in the event of an Itron employee termination for those with access to the SaaS. P
Maintain skill sets necessary to properly support the SaaS. P Administer and monitor Servers including but not limited to utilization of CPU, memory, IOPs, and disk space. P
Manage and troubleshoot the secure SaaS components and processes (if applicable). P
Administer associated Linux, Unix, and Windows operating systems. P Apply operating system and other third-party security patches and critical updates as appropriate. P
Maintain and troubleshoot third-party software issues required for SaaS operations pursuant to this Addendum; work with third party to troubleshoot as required.
P
Maintain anti-virus on all windows-based Servers if applicable to the SaaS platform. P
Monitor communications and support communications troubleshooting activities for the SaaS. P
Perform software upgrade activities. P
Maintain and administer the SaaS Server databases. P
Manage upload and submission of meter data files; work with Itron when problems are identified. P
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Itron Master Sales Agreement Page 46 of 60 Itron Confidential Description of service or deliverable Itron Customer
Provide and maintain a Secure FTP or equivalent if included in the SOW. P Perform regular system, database, and custom component backups in accordance with selected service level. P
Maintain the applicable standard operating procedures and run books to maintain, monitor and operate the hosted environment. P 00047596.0
Itron Master Sales Agreement Page 47 of 60 Itron Confidential Attachment A
SPECIAL TERMS AND CONDITIONS
Special Terms and Conditions – Managed Services. The Special Terms and Conditions contained within this Section apply to Itron’s Managed Services Service Offering. 1 Managed Services – Descriptive Overview.
a.
When Customer subscribes to Managed Services, as part of the overall Service Offering Itron will provide SaaS for the applicable Software, plus Itron will also assume some of Customer’s SaaSrelated operational responsibilities, including management of reads from monitored and Available Endpoints or Provisioned and Optimized Endpoints (as applicable), collecting data, and delivering data files to Customer at agreed-upon intervals in agreed upon data formats. Itron will attempt to remotely diagnose and resolve Endpoint exceptions detected by Itron or reported by Customer. If the exception cannot be resolved remotely, or it is determined to impact an individual or small number of Endpoints, Itron will notify Customer that Customer must perform in-field investigation. b.
Managed Services are only available for Itron Software identified in the table set forth in this Section
1.2 below for which Customer has purchased such Managed Services and paid all applicable fees.
Itron Software Eligible to Receive Managed Services
IntelliSOURCE Express MV-90 xi
Itron Enterprise Edition Streetlight Vision
Itron Enterprise Edition Service Mode TMS
OpenWay Collection Engine (CE)
UIQ: Advanced Metering Manager, Meter
Program Configurator, Control Platform,
Outage Detection and SensorIQ
OpenWay Collection Manager (CM)
c. Managed Services – Definitions. The following defined terms are applicable to these Special Terms and Conditions for Managed Services:
Anchor Read means the “register value” stored once daily in a register in the Communication Module as installed in the Endpoint (usually at midnight).
Available Endpoint is an OpenWay CE or OpenWay CM term defined as an Endpoint which meets the following criteria: (a) the Endpoint, if installed by Customer, has been properly installed, (b) Customer has provided all necessary and correct information for Itron to properly provision the Endpoint in Itron’s data collection platform (c) the Endpoint is communicating with Itron’s data collection platform and a register read has been received from the Endpoint for three (3) consecutive days. An Endpoint will not be considered an Available Endpoint if any of these conditions have not been met; or (a) if an exception is detected by Itron or reported by Customer, but the exception cannot be resolved remotely, (b) the Endpoint if it is under field investigation, or (c) cellular carrier outages.
Communications Module or NIC means Itron’s network interface card that may be installed in Equipment.
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Itron Master Sales Agreement Page 48 of 60 Itron Confidential Cumulative File Delivery Delay Hours means – for the purpose of determining Monthly File Delivery Performance % -- the sum of all Daily File Delivery Delay Hours in the Measurement Month.
Daily File Delivery Delay Hours means – for the purpose of determining Monthly File Delivery Performance % -- the number of hours that file delivery is delayed in a given day during the Measurement Month.
Endpoint has the meaning set forth in the General SaaS Terms and Conditions.
Equipment has the meaning set forth in the Equipment Addendum.
Managed Services means SaaS, plus the additional services to be provided by Itron as set forth in these Special Terms and Conditions for Managed Services.
Optimization is a UIQ term which means the procedure by which the layout of the network Equipment configuration and implementation have been validated (“Optimized”) by performing active and passive tests to confirm that performance and redundancy meet the design specifications and other requirements of the Agreement. Optimization is to be executed on an area-by-area basis (or specified portion thereof), after all network Equipment is installed and a minimum of 98% of the metering Endpoints have been deployed to achieve the required level of saturation of the area.
Provisioned means an Endpoint that is located in an area of the NAN and which is in any of the following operational states within the UIQ System: "active," "inactive," or "disconnected," and which has been Optimized, but which is not: (i) in a “new,” "discovered," "installed," "initializing," "unreachable" or "init failed" state; or (ii) considered to be in the process of being deployed or being repaired under warranty. Endpoint operational states are defined in the Meter Lifecycle Reference document.
Service Level Trigger means satisfaction of the particular condition(s) noted in these Special Terms and Conditions below upon which the applicable service level will start to be enforceable and reported on.
20.1.1. Managed Services - Daily Operational Roles & Responsibilities.
Daily operations, Endpoint data collection activities, delivery of daily data export files, and event exception notification require that activities be performed by both Itron and Customer to ensure effective delivery of Managed Services. The table below lists the respective responsibilities of Customer and Itron for such daily activities. Itron’s obligation to provide Managed Services are expressly contingent upon Customer’s full performance of all responsibilities assigned to Customer.
P=Primary responsibility
S=Support responsibility
Description of Service or Deliverable Itron Customer
Create, monitor, and manage interrogation schedules. P
Ensure any input files are received and processed and output files are delivered to Customer by posting to a SFTP folder, or equivalent, where it can be retrieved by Customer as needed.
P
Manage files on the SFTP server where any export files are delivered. If the SFTP server is Itron’s, files should be P S
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Itron Master Sales Agreement Page 49 of 60 Itron Confidential Description of Service or Deliverable Itron Customer
downloaded nightly and files that have been successfully downloaded and processed are to be removed from the SFTP location within 7 days.
Perform read rate monitoring and reporting. P
Perform remote investigation for specific groups of noncommunicating Endpoints affected by a common network issue and coordinate field order with Customer as needed.
P S
Perform scheduling of Endpoint interrogations including file delivery and delivery of Data Collection Platform standard reports.
P
Notify Itron in advance when additional devices are planned to be installed. Perform Meter field maintenance; close work orders with Itron.
P
Perform Network Device and Endpoint repair, replacement, or relocation as required. P
Perform RMA, Processing, Tracking and Performance Reporting for Endpoints and Network devices. S P
Administration of the Managed Services platform applications to Service Levels. P
21.1.1. Managed Services - Environmental Management Roles & Responsibilities
In addition to the daily operational tasks, Customer and Itron each have responsibilities for monitoring and managing the operating environment of the Managed Services platform and applications. The table below lists the respective responsibilities of Customer and Itron for such activities. Itron’s obligation to provide Managed Services are expressly contingent upon Customer’s full performance of all responsibilities assigned to Customer.
P=Primary responsibility
S=Support responsibility
Description of Service or Deliverable Itron Customer
Submit user access requests for new users and deletion
notifications for users no longer involved with the managed system.
P
Provide immediate notification in the event of a Customer employee termination for those with access to the managed system.
P
Provide immediate notification in the event of an Itron employee termination for those with access to the SaaS. P
Maintain skill sets necessary to properly support the require Managed Services platform technologies. P
Maintain skill sets necessary to properly support the required Managed Services platform Field operations. P
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Itron Master Sales Agreement Page 50 of 60 Itron Confidential Description of Service or Deliverable Itron Customer
Administer and monitor servers including but not limited to utilization of CPU, memory, IOPs, and disk space. P
Manage and troubleshoot the secure network infrastructure components and processes (if applicable). P
Administer associated Linux, Unix, and Windows operating systems. P
Apply Operating System and other 3rd party security patches and critical updates as appropriate. P
Update security appliances (if applicable) with new Endpoint related security files. P
Maintain and troubleshoot third party software issues required for Managed Services platform operations, work with third party to troubleshoot as required.
P
Maintain anti-virus on all windows-based servers. P
Perform the initial Network Devices configuration. P
Monitor Network and Endpoint communications and support metering and communications troubleshooting activities for the Managed Services platform.
P
Support solution upgrade activities. P
Maintain and administer the Managed Services platform server databases. P
Establish and manage the wireless backhaul contracts and accounts if applicable. P
Support Customer’s technical operations department to handle Endpoint and Network field exceptions. P
Manage upload and submission of meter data files; work with Itron when problems are identified. P
Provide and maintain a Secure FTP. P
Perform regular system, database, and custom component
backups in accordance with selected service level. P
Develop and maintain related standard operating procedures. P Manage Endpoint firmware revisions, including coordination and scheduling of firmware downloads as necessary (for Itron manufactured devices only with Itron provided firmware).
P
Monitor Endpoint communications, reporting, and troubleshoot Managed Services platform issues as necessary. P
Manage Endpoint manufacturing and security files for all necessary solution components, troubleshoot and coordinate with manufacturing as needed.
P
Develop, maintain and utilize system operations clock, standard operations procedures, and daily checklists for Itron operators and administrators.
P
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Itron Master Sales Agreement Page 51 of 60 Itron Confidential
22.1.1. Service Levels - Managed Services.
This Section 4 of the Special Terms and Conditions for Managed Services sets forth the service levels for Managed Services. Such service levels are only available for Itron Software identified in the tables set forth below for which Customer has purchased Managed Services and paid all applicable fees.
a. Monthly File Delivery Service Level.
i. Service Level Applicability.
The Monthly File Delivery Service Level for Available Endpoints set forth in this Section
4.1 apply to the Itron Software identified in the following table for which Customer has purchased Managed Services and paid all applicable fees:
Itron Software Eligible to Monthly File Delivery Service Level IntelliSOURCE Express OpenWay Collection Engine (CE)
Itron Enterprise Edition OpenWay Collection Manager (CM) Itron Enterprise Edition Service Mode TMS
MV-90 xi
ii. Service Level Trigger.
The Service Level Trigger for the Monthly File Delivery Service Level occurs upon system acceptance as defined in the applicable Statement of Work. iii. Service Level.
“File Delivery” for the purposes of this Section 4.1, is a measure of the performance of Itron’s or its provider’s systems to deliver register read and interval read consumption data collected from Available Endpoints to Customer in agreed-upon formats, at an agreed-upon intervals for Software that collects and delivers data. The monthly File Delivery percentage service level with respect to Itron SaaS Applications (“Monthly File Delivery Service Level”) will meet or exceed 99% each month (for ease of understanding, this means the file is successfully delivered every day of the month). Itron records and the data contained in the file is measured to the agreed to Itron hosted location and will be the sole basis for all File Delivery performance measurements and calculations with respect to the Monthly File Delivery Service Level for Available Endpoints.
iv. Service Level Credits.
Subject to the service level exclusions set forth in Section 8.1 (Service Level Exclusions) of the General SaaS Terms and Conditions, Customer will be entitled to the following credits as its sole and exclusive remedy for Itron’s failure to meet the foregoing Monthly File Delivery Service Level for Available Endpoints:
Monthly File Delivery Service Level Credits
(production environments only)
File Delivery
performance
Credit
(% of monthly Subscription Fee for
applicable SaaS Application)
≥99.0% and <99.5% 2%
≥98.0% and <99.0% 4%
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Itron Master Sales Agreement Page 52 of 60 Itron Confidential ≥96.5% and <98.0% 10%
≥95.0% and <96.5% 12.5%
<95.0% 20%
b. Read Rate Service Levels.
i. Service Level Applicability.
The Read Rate Service Level set forth in this Section 4.2 apply to the Itron Software identified in the following table for which Customer has purchased Managed Services and paid all applicable fees:
Itron Software Eligible to Receive Read Rate Service Level OpenWay Collection Engine (CE)
OpenWay Collection Manager (CM)
TMS
ii. Service Level Trigger.
The Service Level Trigger for the Read Rate Service Level occurs upon system acceptance as defined in the applicable Statement of Work. iii. Service Level.
The average monthly Read Rate will meet or exceed 99% each calendar month (“Read Rate Service Level”). Itron records and data will be the sole basis for all Read Rate measurements and calculations. “Read Rate” means the percentage of Available Endpoints from which register read data has been collected over a rolling 3-day period, measured for each calendar day.
iv. Service Level Credits.
Subject to the service level exclusions set forth in Section 8.1 (Service Level Exclusions) of the General SaaS Terms and Conditions, Customer will be entitled to the following credits as its sole and exclusive remedy for Itron’s failure to meet the foregoing Read Rate Service Level:
Read Rate Service Level Credits
(production environments only)
Number of Daily Failures
in the Applicable Month
Credit
(% of monthly Subscription Fee with
respect to the applicable Managed Services
Service Offering)
≥99.0% and <99.5% 2%
≥98.0% and <99.0% 4%
≥96.5% and <98.0% 10%
≥95.0% and <96.5% 12.5%
<95.0% 20%
c. Read and Demand Service Level.
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Itron Master Sales Agreement Page 53 of 60 Itron Confidential i. Service Level Applicability.
The Data Read Service Levels and On-Demand Read Service Level (collectively, the “Data and On-Demand Read Service Level”) set forth in this Section 4.3 apply to the Itron Software identified in the following table for which Customer has purchased Managed Services and paid all applicable fees:
Itron Software Eligible to Receive Data and On-Demand Read Service Level UIQ: Advanced Metering Manager, Meter
Program Configurator, Control Platform,
Outage Detection and SensorIQ
Streetlight Vision
ii. Data Read Service Level.
(a) Service Level Trigger. The Service Level Trigger for the Data Read Service Level occurs when the applicable Endpoints are Provisioned and Optimized. As each additional area is Optimized, Itron will identify the Endpoints that will be added to the set of Provisioned and Optimized Endpoints subject to the Data Read Service Level. (b) Service Level. For newly available data on the Communication Module, the UIQ System will gather and process Anchor Reads and interval reads from Provisioned and Optimized Endpoints and deliver, via the “export” mechanism of the UIQ System, at least ninetynine percent (99.0%) of Anchor Reads captured at midnight and of interval reads captured each day, by 6:00 a.m. local time the next day, and at least ninety-nine percent (99.5%) of Anchor Reads captured at midnight and of interval reads captured each day, by 2:00 p.m. local time the next day (“Data Read Service Level”). (c) Service Level Credits. Subject to the service level exclusions set forth in Section 8.1 (Service Level Exclusions) of the General SaaS Terms and Conditions, Customer will be entitled to the following credits as its sole and exclusive remedy for Itron’s failure to meet the foregoing Provisioned and Optimized Endpoint Data Read Service Level:
Data Read Service Level Credits
(production environments only)
Number of Daily Failures
in the Applicable Month
Credit
(% of monthly Managed Services Subscription
Fee with respect to the applicable Itron SaaS
Application)
1 – 3 0%
4 – 10 4%
11-15 10%
16 – 20 20%
21 + 20%
iii. On Demand Read Service Level.
(a) Service Level Trigger. The Service Level Trigger for the On-Demand Read Service Level occurs when the applicable Endpoints are Provisioned and Optimized. As each additional area is Optimized, Itron will identify the Endpoints that will be added to the set of Provisioned and Optimized Endpoints subject to the On-Demand Read Service Level. (b) Service Level. The UIQ System will successfully execute at least (98.0%) of all (i) ondemand read, (ii) on-demand remote connect and (c) on-demand remote disconnect 00047596.0
Itron Master Sales Agreement Page 54 of 60 Itron Confidential requests made by Customer for Provisioned and Optimized Endpoints which are actively communicating (“On-Demand Read Service Level”). An on-demand request is a single transaction to a single Endpoint, initiated by a single user of the UIQ system. An on-demand read request does not include batch read jobs targeted at multiple Endpoints (e.g. “read all unread meters”) or read operations used to detect scope of outages and/or determine whether an outage is over. For the purposes of calculating this Service Level, multiple attempts to connect with a single device within a twenty (24) hour period will count as one failed attempt; on-demand read requests (single or batch) targeted at an Endpoint which was not read in previous 24 hours will be excluded; and on-demand read jobs initiated by system-level accounts (“root” and “UIQ”) will be excluded. Service level credits will apply only if there is a minimum of 2,000 on-demand requests in the applicable month. (c) Service Level Credits. Subject to the service level exclusions set forth in Section 8.1 (Service Level Exclusions) of the General SaaS Terms and Conditions, and provided that the minimum number of on-demand Anchor Reads and interval meter read requests has been met pursuant to the table below, Customer will be entitled to the following credits as its sole and exclusive remedy for Itron’s failure to meet the foregoing On-Demand Read Service Level:
On-Demand Read Service Level Credits
(production environments only)
% of On-Demand Meter Read Requests
Successfully Executed in the Applicable Month
Credit*
(% of monthly Managed Services
Subscription Fee with respect to the
applicable Itron SaaS Application)
≥98.0% and 100.0% 0%
≥95.0% and <98.0% 5%
≥90.0% and <95.0% 20%
≤90.0% 20%
*Credits will apply only if there is a minimum of 2,000 on-demand requests in the applicable month. Multiple attempts to connect with a single device within a twenty-four (24) hour period will count as one failed attempt.
END
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Itron Master Sales Agreement Page 55 of 60 Itron Confidential Special Terms and Conditions – Temetra. The following Special Terms and Conditions contained within this attachment apply to Itron’s SaaS Service Offering for Temetra:
1 Mobile Device Software.
(a) License Grant. Subject to the terms of this Agreement, Itron grants Customer a limited, non-exclusive, and non-transferrable license to download, install, and use Itron’s Temetra Mobile application and any associated drivers provided by Itron (collectively, the “Mobile Device Software”) on Itron-approved mobile devices owned or otherwise controlled by Customer (each a “Mobile Device”) strictly in accordance with the Documentation. (b) License Restrictions. Customer shall not: (a) copy the Mobile Device Software; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Mobile Device Software; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Mobile Device Software or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Mobile Device Software, including any copy thereof; or (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Mobile Device Software, or any features or functionality of the Mobile Device Software, to any third party for any reason. (c) Directives. To the extent directive 2009/24/EC on the legal protection of computer programs or similar legislation or regulation (collectively, the “Directives”) is applicable, such Directives may provide Customer the right to decompile Software in order to obtain information necessary to achieve the interoperability of an independently created computer program, prior to exercising any such possible rights under the Directives, Customer agrees to (a) first notify Itron of Customer’s good faith belief that information necessary to achieve the interoperability of an independently created computer program is not otherwise available and that decompilation is indispensable within the meaning of the Directives; and (b) provide Itron with a reasonable amount of time to respond to Customer regarding the foregoing assertions. (d) Limited Mobile Device Software Warranty. For a period of ninety (90) days from the date of delivery of the Mobile Device Software to Customer (the "Warranty Period"), Itron warrants solely to Customer that the Mobile Device Software will substantially conform in all material respects to the applicable Itron published specifications. As Customer’s sole and exclusive remedy for any breach of this warranty, Itron will, at its option, during the warranty period set forth in this Section 1(c), repair or replace non-conforming Mobile Device Software to substantially conform to the foregoing warranty, provided that Itron will have no obligation to repair or replace any non-conforming Mobile Device Software if the Agreement or applicable Order Document has terminated or expired. The foregoing warranty does not apply to nonconformities in the Mobile Device Software due to: (i) modifications not made or approved by Itron in writing; (ii) Customer’s or any third party’s negligence or intentional acts; (iii) misuse or abuse, including the failure to use or install the Mobile Device Software in accordance with the Documentation; (iv) incorrect data, or data entry or output, as applicable, by Customer or a third party; (v) use with third party software, hardware or firmware not provided or authorized by Itron in writing; (vi) a Force Majeure event; or (vii) viruses or security vulnerabilities introduced into the Mobile Device Software or Customer’s systems through no fault of Itron.
After the Warranty Period, any Mobile Device Software errors will be addressed under maintenance and support terms.
(e) Updates. Itron may from time to time in its sole discretion develop and provide Mobile Device Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”).
Based on Customer’s Mobile Device settings, when Customer’s Mobile Device is connected to 00047596.0
Itron Master Sales Agreement Page 56 of 60 Itron Confidential the internet either: (a) the Mobile Device Software will automatically download and install all available Updates; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer shall promptly download and install all Updates and acknowledge and agree that the Mobile Device Software, the Service Offering, or portions thereof may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Mobile Device Software and be subject to all terms and conditions of this Agreement.
23.1.1. Compatible Mobile Devices.
Mobile Device Software is designed to work in connection with Mobile Devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Mobile Device Software work with any other mobile devices.
24.1.1. Disclaimer of Liability.
Mobile Device Software requires Internet connectivity, which Customer is solely responsible for procuring. Itron accepts no responsibility for any internet services failure, Mobile Device failure, or for any loss or damage of any kind caused by such failure.
25.1.1. Business Continuity and Disaster Recovery.
The following shall replace Section 17 (“Business Continuity”) and Section 18 (“Disaster Recovery”) of the General SaaS Terms and Conditions in its entirety:
Itron uses streaming replication to keep a hot failover database always available, with automatic switch over in the event of failure. Application data is automatically backed up every night.
26.1.1. Recovery of Customer Data at the End of the Agreement or SaaS Service.
At the end of the Term of the Agreement or SaaS service (unless the Agreement or SaaS service is renewed pursuant to duly executed amendment or a new agreement), or in the event of its early termination in accordance with the terms of the Agreement, Customer will confirm to Itron in writing, no later than on the effective date of expiration or termination, its decision to close the SaaS service ("Closure Confirmation"). Provided that Itron has received the Closure Confirmation from Customer within the aforementioned period, Itron will maintain Customer's access to the system for a maximum period of three (3) months from receipt of the Closure Confirmation, for the sole purpose of enabling Customer to retrieve the following Customer data: access account information, meter details, history of index reading data and photographs. Customer may, at no additional cost, export said system data in the standard file format used by the SaaS service, or the format already supported by the SaaS service. At the end of this three (3) month period, the Customer data will be permanently deleted and will no longer be recoverable.
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Itron Master Sales Agreement Page 57 of 60 Itron Confidential Special Terms and Conditions – Itron Mobile. The following Special Terms and Conditions contained within this attachment apply to Itron’s SaaS Service Offering for Itron Mobile:
1 Relationship to Licensed FCS Software and Maintenance & Support.
Customer may be required to update or upgrade its licensed FCS Software from time to time in order to ensure full functionality of Itron Mobile. Customer’s subscription and right to use Itron Mobile will terminate if Customer’s FCS Software license is terminated.
27.1.1. Compatible Mobile Devices.
Itron Mobile is designed to work in connection with mobile devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Itron Mobile work with any other mobile devices.
28.1.1. Customer’s Obligation to Protect Customer Information on Mobile Devices.
Customer must take steps to protect Customer information stored on mobile devices. User identification codes, passwords, and any information provided to Customer as part of Itron’s security procedures must be treated by Customer as confidential and must not be disclosed in violation of the Agreement. Customer is at all times responsible for its employees and subcontractors’ use of Itron Mobile. Itron has the right to disable any user identification codes or passwords if Customer or its employees and contractors have failed to comply with any of the provisions of this Agreement.
29.1.1. Internet Connectivity.
Itron Mobile requires internet connectivity. Customer is solely responsible for obtaining, maintaining and paying for such internet connectivity.
30.1.1. Disclaimer of Liability.
Itron accepts no responsibility for any internet services failure, mobile device failure, or for any loss or damage of any kind caused by such failure.
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Itron Master Sales Agreement Page 58 of 60 Itron Confidential Special Terms and Conditions – Field Tools Advanced. The following Special Terms and Conditions contained within this attachment apply to Itron’s SaaS Service Offering for Field Tools Advanced:
1 Compatible Mobile Devices.
Field Tools Advanced is designed to work in connection with mobile devices that meet Itron minimum requirements. Itron will provide the minimum specifications to Customer. Itron is not required to make Field Tools Advanced work with any other mobile devices.
31.1.1. Customer’s Obligation to Protect Customer Information on Mobile Devices.
Customer must take steps to protect Customer information stored on mobile devices. User identification codes, passwords, and any information provided to Customer as part of Itron’s security procedures must be treated by Customer as confidential and must not be disclosed in violation of the Agreement. Customer is at all times responsible for its employees and subcontractors’ use of Field Tools Advanced. Itron has the right to disable any user identification codes or passwords if Customer or its employees and contractors have failed to comply with any of the provisions of this Agreement.
32.1.1. Internet Connectivity.
Field Tools Advanced requires internet connectivity. Customer is solely responsible for obtaining, maintaining and paying for such internet connectivity.
33.1.1. Disclaimer of Liability.
Itron accepts no responsibility for any internet services failure, mobile device failure, or for any loss or damage of any kind caused by such failure.
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Itron Master Sales Agreement Page 59 of 60 Itron Confidential Special Terms and Conditions – Operations Optimizer. The following Special Terms and Conditions contained within this attachment apply to Itron’s SaaS Service Offering for Operations Optimizer:
1 User IDs ad Passwords.
The following shall replace Section 14 (“User IDs and Passwords”) of the General SaaS Terms and Conditions in its entirety:
Itron shall provide Customer with an integration with Azure Active Directory for managing their user identifications and passwords (“User IDs”) to access Itron’s Operations Optimizer. Customer shall be solely responsible for all use of Customer’s subscriptions and accounts. Customer shall maintain the confidentiality of all User IDs assigned to Customer. User IDs may not be shared or used by more than one user.
34.1.1. Roles and Responsibilities.
The table in Section 19 (“Roles and Responsibilities”) of the General SaaS Terms and Conditions shall be replaced in its entirety with the following:
Description of service or deliverable Itron Customer
Manage user access according using Azure Active Directory to add new users and promptly remove users no longer involved with the Software as a Service.
P
Maintain skill sets necessary to properly support the SaaS. P Administer and monitor Servers including but not limited to utilization of CPU, memory, IOPs, and disk space. P
Manage and troubleshoot the secure SaaS components and processes (if applicable). P
Administer associated Linux, Unix, and Windows operating systems. P Apply operating system and other third-party security patches and critical updates as appropriate. P
Maintain and troubleshoot third-party software issues required for SaaS operations pursuant to this Addendum; work with third party to troubleshoot as required.
P
Maintain anti-virus on all windows-based Servers if applicable to the SaaS platform. P
Monitor communications and support communications troubleshooting activities for the SaaS. P
Perform software upgrade activities if required. P
Maintain and administer the SaaS Server databases. P
Manage upload and submission of meter data files; work with Itron when problems are identified. P
Provide and maintain a Secure FTP or equivalent if included in the SOW. P 00047596.0
Itron Master Sales Agreement Page 60 of 60 Itron Confidential Perform regular system, database, and custom component backups in accordance with selected service level. P
Maintain the applicable standard operating procedures and run books to maintain, monitor and operate the hosted environment. P END