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Agenda Report - December 15, 2010 C-16
AGENDA ITEM Car 16 A% CITY OF LODI COUNCIL COMMUNICATION ,m AGENDA TITLE: Authorize City Managerto Execute a Three -Year Agreement with Environmental Systems Research Institute, Inc. (ESRI) for Geographic Information System Software ($163,125) MEETING DATE: December 15,2010 PREPARED BY: Information Systems Manager RECOMMENDED ACTION: Authorize City Managerto execute a three-year agreement with Environmental Systems Research Institute, Inc. (ESRI) for geographic information system software in the amount of $163,125. BACKGROUND INFORMATION: Geographic information systems (GIS) tools are used to capture, store, analyze, manage and map spatial data. GIS software has replaced paper as the medium to provide an assortment of essential information. The City currently utilizes GIS technology, mostly for internal purposes. Through the City's web page, the public also has access to a wealth of information using Autodesk Mapguide, a similar GIS product used by the City that displays a map of things such as garbage pickup days, bus and bike routes, and other useful information. The City uses ESRI and Autodesk Mapguide products. Staff has relied upon ESRI for more complex internal uses, while Mapguide has been used for mapping services for the public. ESRI is the largest GIS software company in the world, is the recognized leader in GIS technology, has the largest selection of products, the most compatibilitywith other software, and the size and technical support staff to service the City's needs. The City is running a 10 -year-old version of the Autodesk Mapguide product and the product needs updating to meet the growing demand from the publicfor GIS -formatted information. Forthese reasons and more, adopting the ESRI standard city-wide will create training and buying efficiencies, it will allow the City to expand its GIS activities internally, enabling the City to offer more information to the public in an easy -to -read and u ndersta nd able format, and it will allow more City staff to install and be trained to use GIS software at a reduced rate. At present, the City uses GIS products as follows: • Zoning and General Plan maps • Creating, editing and analyzing spatial and attribute data • Displaying data on maps stored in databases • Geographical display of city infrastructure • Tracking and mapping of sewer spills and blockagesfor state regulatory requirementsfor the Wastewater Collection System • Tracking and mapping of water valves and fire hydrantsfor maintenance and asset management activities • Mapping of wastewater pump stations, water wells, and water meters (in development) I_1»:101TI:I Konradt Bartlam, City Manager Future uses of these products may include: • Crime map • Fire incident map • Easement locator • Real-time road closure and/or maintenance map • A full GIS based mapping system with laptop computers in all Water and Wastewater service trucks • Tracking and managing of all departmental assets and works flows • Electric, water and wastewater line locations Currently, there are five ESRI licenses city-wide, three of which are "floating" concurrent licenses used by four departments (Fire, Electric Utility, Community Development, and PublicWorks). In addition, the City has also purchased one Spatial Analyst and one ArcGIS Server license. Police Dispatch also uses ESRI technology, which is integrated into the OSSI system. Each license was purchased individually (see Appendix A).The City currently spends about $5,300 in annual support costs for licenses. As the City endeavors to make greater use of spatial data and GIS mapping, staff has determined the most cost-effective approach is to purchase a Small Municipal and County Enterprise License. Such a license allows unlimited use of ESRI products on as many workstations as desired, including support. The proposed contract also includes free registrationsto the annual ESRI conference, telephone helpdesk support, a five percent discount on instructor-Iedtraining, and $10,000 worth of online ("virtual campus") training. There is a need to buy more ESRI licenses, but departments have been holding off pending approval of this proposal because staff believes it will be more cost effective to obtain them underthis agreement. The menu of products available underthis license (see Appendix B) is extensive and also includes those the City is currently using. The enterprise license provides substantial savings compared to buying licenses individually.A three-year contract with ESRI costs $163,125, payable at $54,375 per year. EUD and Public Works, the largest users of ESRI products, will split the first-year cost. FISCAL IMPACT: Currently budgeted; potential of savings thousands of dollars in licensing costs over the term of the contract. FUNDING: Included in FY 2010/11 Budget as follows: EUD Account No. 161000.1820- $27,187.50 Water Account No. 180451.7313 - $13,593.75 Wastewater Account No. 170401.7313- $13,593.75 Jordan Ayers Deputy City Manager/Internal Services Director Prepared by: Steve Mann, Information Systems Manager Appendix A Sample of Individual costs of ESRI ArcGIS software ESRI Product Per License ArcGIS Server Enterprise Advanced $40,000 Enterprise Standard $20,000 ArcGIS Desktop ArcINFO $14,000 ArcEditor $7,000 ArcView Concurrent use $3,500 ArcView Single Use $1,500 ArcGIS Desktop Extensions Spatial Analyst $2,500 3D Analyst $2,500 Data Interoperability $2,500 Network Analyst $2,500 Appendix B ENTERPRISE SOFTWARE SCHEDULE Unlimited Quantities Desktop Software and Extensions • Arclnfo • ArcEditor • ArcView • ArcGIS Desktop Extensions: 3D Analyst, Spatial Analyst, Network • Analyst, Geostatistical Analyst, ArcScan for ArcGIS, ArcGIS • Publisher, Maplex for ArcGIS, Schematics, and Job Tracking for • ArcGIS (JTX) Server Software and Extensions • ArcGIS Server Workgroup or Enterprise (Advanced, Standard, • and Basic) • ArcIMS • ArcGIS Server Extensions: 3D, Schematics, Geostatistical, Job • Tracking, Network, Image, and Spatial Developer • ArcGIS Engine Runtime • ArcGIS Engine Runtime Extensions: 3D, Spatial, Geodatabase • Update, Network, Schematics, and Maplex Limited Quantities One Annual Subscription to ESRI Developer Network (EDN) ESR1 November 16, 2010 Mr. Steve Mann CITY OF LODI 221 W PINE ST LODI, CA 95241 Dear Steve, The ESRI Small Municipal and County Enterprise License Agreement (ELA) is a three-year agreement that will grant your organization access to ESRI® software on an unlimited basis including maintenance on all software offered through the ELA for the term of the agreement. The ELA will be effective on the date executed and will require a firm, three-year commitment. Based on ESRI's work with several organizations similar to yours, we know there is significant potential to apply geographic information system (GIS) technology in many operational and technical areas within your organization. For this reason, we believe that your organization will greatly benefit from an enterprise license agreement. An ELA will provide your organization with numerous benefits including: ■ A lower cost per unit for licensed software ■ Substantially reduced administrative and procurement expenses ■ Maintenance on all ESRI software deployed under this agreement ■ Complete flexibility to deploy software products when and where needed The following business terms and conditions will apply: ■ All current departments, employees, and in-house contractors of the organization will be eligible to use the software and services included in the ELA. ■ If your organization wishes to acquire and/or maintain any ESRI software during the term of the agreement that is not included in the ELA, it may do so separately at the ESRI pricing that is generally available for your organization for software and maintenance. ■ The organization will establish a single point of contact for orders and deliveries and will be responsible for redistribution to eligible users. ■ The organization will establish a Tier 1 support center to field calls from internal users of ESRI software. The organization may designate individuals as specified in the ELA who may directly contact ESRI for Tier 2 technical support. ■ The organization will provide an annual report of installed ESRI software to ESRI. Small GovernmentELA ES RI 380 NewYork St., Redlands, CA 92373.8100, USA • TEL 909-793-2853 • FAX 909-793-5953 info@esri.com• WEB www.esri.com ■ ESRI software and updates that you are licensed to use will be shipped automatically as they become available. ■ The organization will act as an ESRI reference site and will permit ESRI to publicize its use of ESRI software and services. ■ Licenses are valid for the term of the ELA. This program offer is valid for 90 days. To complete the agreement within this time frame, please contact me within the next seven days to work through any questions or concerns you may have. To expedite your acceptance of this ELA offer: Sign and return the signature page of the ELA with a Purchase Order or issue a Purchase Order that references this ELA Quotation and includes the following statement on the face of the Purchase Order: "THIS PURCHASE ORDER IS GOVERNED BY THE TERMS AND CONDITIONS OF THE ESRI SMALL MUNICIPAL AND COUNTY ELA, AND ADDITIONAL TERMS AND CONDITIONS IN THIS PURCHASE ORDER WILL NOT APPLY." and have it signed by an authorized representative of the organization. 2. On the first page of the ELA, identify the central point of contact/agreement administrator. The agreement administrator is the party that will be the contact for management of the software, administration issues, and general operations. Information should include name, title if applicable, address, phone number, and e-mail address. 3. In the purchase order, identify the "Ship to" and 'Bill to" information for your organization. 4. Send the purchase order and agreement to the address noted below: ESRI Attn.: Customer Service SG-ELA 380 New York Street Redlands, CA 92373-8100 Or e-mail service@esri.com or fax documents to 909-307-3083. I appreciate the opportunity to present you with this proposal, and I believe it will bring great benefits to your organization. Thank you very much for your consideration. Best regards, Michelle DeBoves Small Government ELA ESRI 380 New York St., Redlands, CA 92373-8100, USA • TEL 909-793-2853. FAX 909-793-5953 info@esri.com. WEB www.esri.com ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE. INC. 380 New York St Redlands, CA 92373-8100 Phone: (909) 793-2853 Fax: (909) 307-3025 DUNS Number: 06-313-4176 CAGE Code: OAMS3 To expedite your order, please attach a copy of this quotation to your purchase order. Quote is valid from: 06/28/2010 To: 12125/2010 Quotation # 20368935 Date: June 28,2010 Customer# 352276 Contract# CITY OF LODI INTERNAL SERVICES ISD 221 W PINE ST LODI. CA 95241 ATTENTION: Steve Mann PHONE: (209) 333-5548 FAX: (209) 333-6807 Material Qty Description Unit Price Total 110037 1 Populations of 50,001 to 100,000 Small Government Enterprise Term 50,000.00 50,000.00 LicenseAgreement 110037 1 Populationsof 50,001 to 100,000Small Government EnterpriseTerm 50,000.00 50,000.00 LicenseAgreement 110037 1 Populations of 50,001 to 100,000 Small Government EnterpriseTerm 50,000.00 50,000.00 LicenseAgreement Item Total: 150,000.00 Subtotal: 150,000.00 Sales Tax: 13,125.00 Estimated Shipping & Handling(2 Day Delivery) : 0.00 Contract Pricing Adjust: 0.00 Total: $163,125.00 The following items are optional items listed for your convenience. These items are not included in the totals of this quotation. Material Qty Description Unit Price Total 115573 1 ArcPad Populationsof 50,001 to 100,000 Small Government Enterprise 1,000.00 1,000.00 LicenseAgreement 114403 1 ArcGIS Data Interoperability Populations of 50,001 to 100,000Small Government Enterprise LicenseAgreement 117103 1 Bing Maps Add -On for Populations of 50,001 to 100,000 Small Government Enterprise LicenseAgreement 3,000.00 5,000.00 3,000.00 5,000.00 ' Please indicateon your purchase order ifthis purchase is funded through the American Recovery and ReinvestmentAct, and whether Esd is a Prime Recipient.Sub-recipient, or Vendor for reporting purposes For questions contact: Michelle DeBoves Email: mdebovesOesri.com Phone: (909) 793-2853x2679 Acceptance of this quotation is limited to the Esri LicenseAgreement and the Quotation Terms and Conditions This Quotation is made in confidence for your review. It may not be disclosed to third parties, except as required bylaw. If sending remittance, please address to: Esri, File No. 54630, Los Angeles, Ca 90074-4630 DEBOVESM This offer is limited to the terms and conditions incorporated and attached herein. ArcGIS ONLINE PREMIUM SERVICES �® USE AGREEMENT ESRI, 380 New York St., Redlands, CA 92373-8100 USA -TEL 909-793-2853• FAX 909-793-5953 ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. ("ESRI"), IS WILLING TO GRANT THE USER A LICENSE TO ACCESS AND CONSUME THE ArcGIS ONLINE PREMIUM SERVICE(S) DESCRIBED IN THIS USE AGREEMENT ON THE CONDITION THAT THE USER BELOW AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN. SECTION A—GENERAL TERMS AND CONDITIONS This Use Agreement is entered into by and between ESRI and User. ESRI is making available to User certain premium data and/or imagery services provided hereunder (hereinafter individually or collectively referred to as the "Service(s)") through the Service(s) Web site. ESRI provides the Service(s) to User subject to the User's payment of applicable license or subscription fees, the terms and conditions of this Use Agreement, and any other operative Addendum(s), that may apply for the respective Service(s). Unless explicitly stated to the contrary, these terms and conditions, and the terms and conditions of any operative Addendum, shall govern User's use of any new feature(s) that augment or enhance the current Service(s), including the release of any new Service(s). If User is using any of the Service(s) on behalf of User's employer, User represents that User is authorized to accept these terms and conditions on behalf of User's employer. ARTICLE 1—CONFIDENTIAL INFORMATION To gain access to the Service(s), the parties hereby agree to these confidentiality provisions. 1.1 User acknowledges that User will obtain direct access via ESRI's Web site to certain ESRI confidential information including any and all password or controlled access information provided by ESRI and ESRI databases containing confidential information of ESRI and its licensors. ESRI acknowledges that ESRI may receive User's confidential information, data, business, product, or application marketing strategies and other valuable technical or personal information. The receiving party shall hold such confidential information ("Information"), which Information has been clearly marked as "Confidential" or "Proprietary" by the disclosing party, in strict confidence and may provide Information to employees within its organization only on a need -to -know basis. User shall maintain and safeguard the confidential nature of usernames, passwords, or registration information received from ESRI or its third party suppliers with the same degree of care as it safeguards its own confidential information of similar nature, but in no case less than reasonable care. When applicable, ESRI may also distribute Information to ESRI distributors and affiliates who have a need to know and actively participate in the delivery of ArcGIS Online Services or corresponding support to User. User may use the Information obtained from ESRI's Web site, or by any other means of disclosure, solely for the purpose of developing, maintaining, and supporting User's Web -enabled applications subject to the respective grant of license in Section B, Article 2, to license additional ESRI software, data, or Service(s), or to support any other activities in furtherance of this Use Agreement. 1.2 The receiving party shall not acquire any rights, title, or ownership to the disclosing party and/or its licensor's Information, except the limited rights to use the Information as described above. 1.3 The receiving party's obligations to maintain the confidentiality of the disclosing party's Information shall continue for three (3) years after the date of first receipt of any Information hereunder. Upon termination of this Use Agreement or upon the disclosing party's written request, the receiving party must cease use of Information and return or destroy all Information. 1.4 This Article 1, Confidential Information, shall impose no obligation upon the receiving party with respect to Information that the receiving party can establish by legally sufficient evidence that (a) it possessed, or knew, prior to its receipt hereunder, or received from the disclosing party without an obligation to maintain its confidentiality; (b) Information is or has become generally known to the public through no act or omission by the receiving party, or otherwise without violation of this Use Agreement; (c) Information was obtained from a third party that had the right to disclose it without an obligation to keep such information confidential; (d) Information was independently developed without the use of Information and without the participation of individuals who have had access to Information; or (e) Information is obtained in response to a valid order by a court or other governmental body, as otherwise required by law or as necessary to establish the rights of either party under this Use Agreement and as disclosed after adequate prior notice to the disclosing party, to afford the disclosing party the opportunity to object to or seek a protective order against the disclosure. G-582-A/JK 1 12/11/09 ARTICLE 2—USER'S CONDUCT REGARDING THE USE OF ESRI WEB SITE AND SERVICE(S) 2.1 User agrees not to use the Service(s) in any way for spamming or to transmit chain letters, junk e-mail, or bulk communications. Without liability, ESRI reserves the right to block, filter, or delete any such unsolicited communications described above. User agrees not to transmit through the Service(s) any content that is objectionable or upload such content onto ESRI's Web site or its servers. User agrees not to use any ESRI domain name as a pseudonymous return e-mail address for any communications that User transmits from another location or through another service. User agrees not to pretend to be someone else or spoof their identity when using the Service(s). 2.2 User agrees not to use the Service(s) for any unlawful activities not otherwise covered above, including without limitation, attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, or making direct threats of physical harm. In addition to the foregoing, User's use of the Service(s) shall not (a) impersonate any person or entity, including, but not limited to, an ESRI official or employee, ESRTs Web site or Service(s), or falsely state or otherwise misrepresent User's affiliationwith an ESRI person or entity; (b) upload, post, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment; (c) intentionally or unintentionally violate any applicable local, state, or federal law or any regulations having the force of law including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission or any national securities exchanges; or (d) stalk or otherwise harass another. Without liability, ESRI reserves the right to terminate this Use Agreement and to discontinue User's access to the Service(s) immediately upon ESRI's determination that User has engaged in any of the foregoing. Additional restrictions, or terms of use, concerning the use of ESRI's third party licensor(s) of data and/or imagery contained in the Service(s) are set forth in Section C below. ARTICLE 3—NOTICES; MODIFICATION AND TERMINATION OF SERVICES) ESRI may send notices to User via e-mail, regular mail, and/or through available on-line documentation. The Service(s) may also provide notices of changes to the terms and conditions of this Use Agreement or other matters by displaying notices or links to notices to User generally about the Service(s). ESRI reserves the right, at any time and from time to time, to modify change, restrict, or discontinue, temporarily or permanently, the Service(s) (or any part thereof) with or without notice. ESRI may make changes to the Service(s), including those regarding products, services, programs, Use terms and conditions, and prices, at any time. For Users accessing Services that contain data and/or imagery from Microsoft, ESRI reserves the right at its sole discretion or at such time User has exceeded the then current cumulative annual transaction level, to convert the User's license to a subscription based license upon electronic mail notice to the registered User. User can review the most current version of the Service(s) or this Use Agreement, and/or any operative Addendum that may apply, at any time at www.esri.com/leeal/. If a modification of the Service(s) or the terms of the Use Agreement is unacceptable to the User, the User may cancel the Use upon written notice to ESRI. If User continues to use the Service(s), the User will be deemed to have accepted the modifications. Any termination of User's access to the Service(s) due to the breach of any provision of this Use Agreement may be effected without prior notice, and ESRI may immediately deactivate or delete User's Service(s) site account and/or bar any further access to such files or the Service(s), Furthermore, ESRI will not be liable to User or any third party for any termination, modification, or suspension of the Service(s). ARTICLE 4—INTELLECTUAL PROPERTY RIGHTS 4.1 "ESRI Trademarks" means all names, marks, brands, logos, designs, trade dress, and other designations ESRI uses in connection with the Service(s), software, data, or Information. User may not use or co -brand User's applications, products, or material associated with User's applications or services with any ESRI Trademarks. User agrees not to incorporate any ESRI Trademarks into User's trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations. 4.2 As a condition of ESRI's grant of license to use the Seryice(s), User shall not remove any intellectual property notices, proprietary legends, and/or U.S. Government Limited/Restrictive Rights legend contained in the Service(s), the metadata files of any of the Service(s), and any online and/or hard -copy attributionpage of any data or documentation delivered hereunder and shall affix any attribution notices as may be specified therein. 4.3 Except as specifically set forth in Section B, Article 2, in no event shall this Use Agreement confer any license under any of ESRI's or any third -party provider's intellectual property rights, whether by estoppel, implication, or otherwise. User acknowledges sole responsibility for obtaining any other use licenses. G-5 82-A/JK 2 12/11/09 4.4 Copyright Policy. ESRI's copyright policy is to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to take down allegedly infringing materials and/or terminate the accounts of repeat infringers, as applicable. Further details of ESRI's copyright policy can be found at htti)://www.esri.com/legal/licensing/dmca volicv.html. ARTICLE CDISCLAIMER OF WARRANTIES 5.1 USER'S USE OF THE SERVICE(S) IS AT USER'S SOLERISK. THE SERVICE(S) AND CONTENTARE PROVIDED ON AN "AS -IS" AND "AS -AVAILABLE" BASIS. UNLESS OTHERWISE EXPLICITLY STATED, THE SERVICES) OR CONTENT ON ESRI'S WEB SITE IS NOT INTENDEDFOR USE IN ANY MISSION -CRITICAL APPLICATIONS. ESRI DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ESRI MAKES NO REPRESENTATIONS,WARRANTIES, CONDITIONS, OR GUARANTIES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF ANY OF THE SERVICE(S) OR CONTENT CONTAINED ON ESRI'S WEB SITE. 5.2 THE SERVICES) OR CONTENTHAS BEEN OBTAINEDFROM SOURCES BELIEVED TO BE RELIABLE, BUT ITS ACCURACY AND COMPLETENESS ARE NOT GUARANTEED. THE SERVICE(S) AND CONTENTMAY CONTAIN SOME NONCONFORMITIES, DEFECTS, INACCURACIES,ERRORS, OR OMISSIONS. ESRI MAKES NO WARRANTY OR CONDITION THAT (a) THE SERVICE(S) WILL MEET USER'S REQUIREMENTS; (b) THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR -FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES) WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY SERVICE(S), DATA OR INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY USER THROUGH THE SERVICE(S) WILL MEET USER'S EXPECTATIONS; OR THAT (e) ANY ERRORS IN THE SERVICE(S), SOFTWARE,DATA, OR INFORMATION WILL BE CORRECTED. 5.3 ANY SOFTWARE,DATA, OR INFORMATION DELIVERED PURSUANT TO THIS USE AGREEMENT OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE(S) IS DONE AT USERS OWN DISCRETION AND RISK, AND USER IS SOLELYRESPONSIBLE FOR ANY DAMAGE TO USER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH SOFTWARE, DATA, OR INFORMATION INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES OR OTHER MALICIOUS COMPUTER CODE. 5.4 BOTH PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS, AND THAT (a) THE INTERNET IS NOT A SECURE INFRASTRUCTURE, (b) NEITHER PARTY HAS CONTROL OVER THE INTERNET, AND (c) NEITHER PARTY IS LIABLE FOR DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE SERVICE(S). 5.5 THE SERVICE(S) OR CONTENTDELIVEREDHEREUNDERARENOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE FOR INSURANCEUNDERWRITING, OR WITH CRITICAL HEALTH AND SAFETY OR ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS THAT REQUIRE FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFTNAVIGATION, OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, EMERGENCY RESPONSE, TERRORISM PREVENTION OR RESPONSE, LIFE SUPPORT, OR WEAPONS SYSTEMS ("HIGH-RISK ACTIVITIES"). ESRI SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF FITNESS OR HIGH-RISK ACTIVITIES. 5.6 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM ESRI OR THROUGH OR FROM THE SERVICE(S) WILL CREATE ANY WARRANTY OR CONDITIONNOT EXPRESSLY STATED IN THE TERMS OF THIS USE AGREEMENT. ARTICLE 6—LIMITATION OF LIABILITY 6.1 IN NO EVENT SHALL ESRI OR ITS THIRD-PARTYLICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA, ELECTRONICALLY G-582-A/JK 3 12/11/09 TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE (EVEN IF ESRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR RELATED TO THE FOLLOWING: (a) THE USE OF, OR THE INABILITY TO USE, THE SERVICE(S); (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES) RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICE(S) PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE(S), (c) UNAUTHORIZEDACCESS TO, OR ALTERATION OF, USER'S TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE(S); OR (e) ANY OTHER MATTER RELATING TO THE SERVICE(S) INCLUDING CONTENT USER MAY DOWNLOAD, USE, MODIFY, OR DISTRIBUTE FROM ESRI'S WEB SITE. 6.2 USER HAS SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF ANY DATA AND/OR ANY EQUIPMENT USED IN CONNECTION WITH THE SERVICE(S) AND WILL NOT MAKE A CLAIM AGAINST ESRI FOR LOST DATA, RERUN TIME, INACCURATE OUTPUT, WORK DELAYS, OR LOST PROFITS RESULTING FROM THE USE OF THE SERVICE(S). 6.3 USER AGREES TO HOLD ESRI HARMLESS FROM, AND USER COVENANTSNOT TO SUE ESRI FOR, ANY CLAIMS BASED ON USING THE SERVICE(S) AS INTEGRATED AS PART OF USER'S VALUE-ADDED APPLICATION, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE, INFRINGEMENT), OR OTHERWISE. 6.4 User agrees that the limitation of liability and disclaimers set forth in this Use Agreementwill apply regardless of whether User has accepted any Service(s), software, data, or documents delivered by ESRI. User agrees that ESRI sets its prices and entered into this Use Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of bargain between the parties. ARTICLE 7—INDEMNITY ESRI is committed to respecting others' intellectualproperty rights and asks that User do the same. To the extent permitted by law, User agrees to defend, indemnify, and hold harmless ESRI and its subsidiaries; affiliates; officers; agents; cobranders; alliance members or other partners, employees, or agents from any claim or demand, including reasonable attorneys' fees, made by any third party due to, or arising out of, User's use of the Service(s) including any use by User's employees or agents (including uses as described in Article 1. 1), User's connection to the Service(s), User's violation of the terms and conditions of this Use Agreement, or User's violation of any rights of a third party. ESRI may, at its sole discretion, terminate the accounts or access rights of Users who misappropriate, infringe, or otherwise violate a third party's intellectual property rights. ARTICLE 8—ESRI' S PRIVACY POLICY ESRI respects User's desire for privacy. ESRI's Privacy Policy can be found at www.esri.com/privacy. By using the ESRI Web site, User is consenting to the processing of User's registration Information by ESRI, by the data and/or serviceprovider, and, if applicable, by any authorized ESRI distributorresponsible for providing technical support to User and consentingto the terms of ESRI's Privacy Policy. If ESRI decides to change that policy, it will post the revised policy prominently on ESRI's Web site or otherwisebring it to User's attention, so that User is always aware of what ESRI does with User's registration Information. ARTICLE 9—GENERAL INFORMATION 9.1 This Use Agreement constitutes the entire agreement between User and ESRI and governs User's use of the Service(s), superseding any prior agreements between User and ESRI (including, but not limited to, any prior versions of the Use Agreement). Also, User may be subject to additional specific terms and conditionsthat may apply when User accesses and uses other Service(s), ESRI software, third -party content, or third -party software. User may not assign or otherwise transfer the terms and conditions nor any rights granted herein. Articles 1, 4, 5, 6, 7, and 9 shall survive termination of this Use Agreement. G-582-A/JK 4 12/11/09 9.2 This Use Agreement shall be construed and enforced in accordance with, and be governed by, the laws of the United States of America and the State of California without reference to conflict of laws principles. User and ESRI agree to submit to the personal and exclusive jurisdiction of the courts located within the county of San Bernardino, California. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. 9.3 User acknowledges and agrees that the Service(s) are subject to the U.S. Export Administration Laws and Regulations. Diversion of such Service(s) contrary to U.S. law is prohibited. User agrees that none of the Service(s), software, data, or Information, or any direct product there from, are being, nor will be, acquired for shipping, transferring, or reexporting, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. government. User certifies that User is not on the U.S. Department of Commerce's Denied Persons List or affiliated lists or on the U.S. Department of the Treasury's Specially Designated Nationals List. User agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or reexport as may be required. User further agrees to comply with all import laws, restrictions, and regulations applicable to the location where the Service(s) are received by the User. 9.4 Any breach of this Use Agreement will result in the irreparable harm to ESRI or its third -party licensors for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, ESRI shall have the right to an injunction, specific performance, or other equitable relief in any court of competent jurisdiction to prevent violation of these terms and without the requirement of posting a bond or undertaking or proving injury as a condition for relief. 9.5 The failure of ESRI to exercise or enforce any right or provision of the terms and conditions of this Use Agreement does not constitute a waiver of such right or provision. If a court of competentjurisdiction finds any provision of the terms of this Use Agreement to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the terms and conditions of this Use Agreement remain in full force and effect. Regardless of any statute or law to the contrary, any claim or cause of action arising out of, or related to use of, the Service(s) or the terms and conditions of this Use Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. 9.6 Fees quoted to User are exclusive of any and all applicable taxes or fees including, but not limited to, sales tax, use tax, value-added tax (VAT), customs, duties, or tariffs, and shipping and handling charges. SECTION D P E C I A L TERMS AND CONDITIONSFOR USE WITH ArcGIS ONLINE SERVICES ARTICLE 1—DESCRIPTION OF SERVICE 1.1 ArcGIS Online Services. ESRI, through its Web site, provides User with certain premium data and/or imagery Services. For details on premium services, seehttp;//www.esri.conVsoftware/arceis/aresisonline/map-services,htm1, 1.2 ESRI may make improvements and/or changes in its offerings of the Service(s), or prices described in this ESRI Web site at any time without notice. Changes are periodically made to the Web site and to the Service(s), ESRI may amend the ArcGIS Online Services Use Agreement or this or any other operative Addendum(s) at any time by posting the amended terms on this site. 1.3 Updates to the Service(s) described in Article 1.2 above are immediately made available to User upon their release for commercial availability as described in the online documentation and are provided to User at no additional charge. ARTICLE 2—LICENSE a. Grant for ArcGIS Online Premium Services for ArcGIS Users. Upon the User's payment of the applicable subscription fee, User is granted a nonexclusive, nontransferable, limited license to access the Service(s), whether through a desktop application or a server application interface, to which User subscribes. Such license includes the right to access the Service(s) made available on the Web site and to use the Service(s) to develop and integrate Service(s)- generated functionality into Web -enabled applications. The Service(s) shall be used solely by User for User's own internal business purposes, including Internet and extranet access and solely in conjunction with ESRI software or applications. User shall include the applicable ArcGIS Online Premium Services copyright attribution notice as set forth in the relevant data source. In the event User should (i) create a Web -enabled application using the Service(s) and, (ii) intend to deploy such application to third parties as an Application Service Provider (ASP), as defined below, then G-582-A/JK 5 12/11/09 additional license or subscription fees will be due and payable to ESRI, and (iii) the User agrees to have an enforceable agreement in place with any customer or end user of such Web -enabled application that contains terms and conditions substantially similar to the terms and conditions of this Use Agreement and any operative Addendum(s) that may apply. For the purposes of this Article 2, an ASP shall mean any individual, business, government, or educational Users that intends to operate or use an application created that uses the Service(s) (i) outside of their business or organization, and (ii) in a commercial environment that generates income or is used to promote the generation of income. Additional ESRI software, data, or information not included in the Service(s) is available to User for use in conjunction with the Service(s), subject to a separate ESRI license agreement. User may require third -party owned and provided data that will require additional third -party terms and conditions that are set forth in Section C hereto. User shall maintain accurate business records, including accurate transactions records of its use of the Service(s) under this section. ESRI reserves the right to monitor User's accounts and transactions, and may audit upon reasonable written notice to User. b. Grant for ArcGIS Online Premium Services for API Users. User is granted a nonexclusive, nontransferable, limited license to access the Service(s), and updates, to which User subscribes. Such license includes the right to access the Service(s) made available on the Web via alternative server application interfaces, and to use the Service(s) to develop and integrate Service(s) generated functionality into Web -enabled applications. The Service(s) shall be used solely by User and for User's own business purposes only. In the event User should (i) create a Web -enabled application using the Service(s) and, (ii) intends to deploy such application to third parties acting as an ASP as defined in (a) above, then additional license or subscription fees will be due and payable to ESFU. The User agrees to have an enforceable agreement in place with any customer or end user of such Web -enabled ASP application that contains terms and conditions substantially similar to the terms and conditions of this Use Agreement and any operative Addendum(s) that may apply. User may require third -party owned and provided data that will require additional terms and conditions that are set forth in Section C hereto. ESRI software, data, or documentation not included in the Service(s) is available to User for use solely in conjunction with the Service(s), or with ESRI Software, subject to a separate ESRI license agreement. User shall maintain accurate business records, including accurate transactions records of its use of the Service(s) under this section. ESRI reserves the right to monitor User's accounts and transactions, and may audit upon reasonable written notice to User. c. Commercial Use of Services. Upon User's payment to ESRI of the applicable license fee(s) and the execution of this Use Agreement, User may access, download, view, copy, and print Services available on ESRI Web sites, for User's Commercial Use. As a condition of this grant of Commercial Use license, User agrees to have in place a license agreement with ail of User's third party customers the terms of which protect the Intellectual Property rights of ESRI and its licensor(s) substantially similar to the terms and conditions herein. User shall maintain accurate business records, including accurate transactions records, of any such Commercial Use licenses which ESRI may audit upon reasonable written notice to User. On or before the renewal date of the authorized Commercial Use, User shall provide such written transaction records to ESRI. For the purposes of this Article 2 c, Commercial Use means User's authorized use of the Services wherein User provides the Services to third parties through authorized transactions that User and/or its third party customers generate income, or promote the generation of income from use. d. Limitations. Except as may be expressly provided for elsewhere herein, User may not copy, download, store, cache, or otherwise distribute, publish, transmit, transfer, sell, or otherwise use the Service(s). User may not sell, rent, lease, lend, time-share, assign, or transfer any right to use the Service(s) to any third party without the prior express written permission of ESRI. Except for User's use of the Service(s) in conjunction with ArcGIS when User may download and store the results derived from User's use of the Service(s), User may not store the results derived from User's use of the Service(s) for the purpose of creating a value-added Web -enabled application that User intends to resell, license, or otherwise distribute to third parties. User may not reverse engineer, decompile, or disassemble the Service(s), except to the extent that such activity is permitted by applicable law notwithstanding this restriction, in order to protect ESRI or its suppliers'trade secrets and proprietary information contained in the Service(s). User may not create derivative Service(s) or add value to the Service(s) and thereafter resell or otherwise distribute the Service(s) as User's own services. User may not use the Service(s) and reformat and display the Service(s) in an attempt to mirror and/or make commercial use of the ESRI Web site. All rights not specifically granted in this Article 2, License are reserved to ESRI. e. Evaluation License—Bing Maps. User may access and utilize data and/or imagery provided by Microsoft for the limited purpose of its own internal evaluation of Bing Maps subject to the terms of this Use License and (i) the period of User's evaluation shall not exceed one (1) consecutive ninety (90) day period only, (ii) use of the Service(s) are limited to evaluation, development and testing of applications, (iii) use of the Service(s) is limited to no more than 30,000 transactions per month, (iv) user may not download more than 250 points of interest at any one time, and (v) user may only access the Service(s) via the staging environment only. ARTICLE 3—MISCELLANEOUS OR SPECIAL TERMS None G-582-A/JK 6 12/11/09 SECTION C—TERMS AND CONDITIONS REQUIRED FOR USE OF THIRD -PARTY DATA AND/OR IMAGERY IN CONJUNCTION WITH ESRI ArcGIS ONLINE PREMIUM SERVICES ESRI agrees to make available to the User certain Premium ArcGIS Online Services(s) that may include datasets and/or imagery owned by certain third -party suppliers ("Third-PartyData"). In the event User accesses or utilizes such Third -Party Data, User's use of such Third -Party Data will be governed, in addition to the terms and conditions of this Use Agreement, by the terms and conditions set forth in the Use of Data Restrictions page found at www.esri.com/legal/. Third Party Data and/or Imagery Use Terms. The authorized use of any Third Party Data contained in the Service(s) accessed by User shall be governed by the following terms and conditions: A. If User utilizes Third Party Data and/or Imagery owned and provided by I -cubed as part of User's access to the Service(s), then such use will be subject to the following terms and conditions: 1. User may use any data and/or imagery for User's own internal business purposes, and solely in conjunction with any ESRI ArcGIS product. 2. User may cache the data and/or imagery on the client side for improved performance of the web -enabled application, or may delete the cache and access the image tiles from the server on an as needed basis. 3. Data and/or any imagery downloads are not permitted, without the express prior written permission of ESRI. Additional terms and license fees will apply to any such use permission. 4. In no event shall user resale any data and/or imagery provided by I -cubed. B. If User utilized Third Party Data and/or Imagery owned and provided by Microsoft as part of User's access to the Service(s), then such use will be governed by the following terms and conditions: 1. Upon User's consent to this ArcGIS Online Premium Services Use Agreement, User expressly agrees that use of the any data and/or imagery provided by Microsoft as part of the Service(s) shall be governed by the terms and conditions of the Microsoft Terms of Use and Privacy Statement. 2. Microsoft's Terms of Use are found at the following link: htto://eo.microsoft.com/fwlink/?Linkld=21969 3. Microsoft's Privacy Statement is found at the following link: htti):Hgo.microsoft.com/fwiink/?Linkld=21970 Additional use restrictions and terms of use for any data and/or imagery provided by Microsoft as part of the Services are specified in Attachment No. Ito this Use Agreement which is incorporated by reference herein and made part of this Use Agreement. IN WITNESS WHEREOF, the parties have caused this Use Agreement, together with its Attachment No. 1 hereto, to be executed and effective as of the last date written below. ACCEPTED AND AGREED: (Licensee) Signature: Printed Name: ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. (ESRI) Signature: Printed Name: Title: Title: Date: Date: G-582-A/JK 7 12/11/09 ATTACHMENT NO. 1 TO THE ArcGIS ONLINE PREMIUM SERVICES USE AGREEMENT As a condition of User's access and use of any imagery and/or data provided by Microsoft, User agrees to the following terms: a. User's access and use of the Services containing Microsoft data and/or imagery may only be used in applications developed in conjunction with ESRI software. b. User's access and use of the Services in a staging environment shall be for development, testing, and maintenance purposes only and not for commercial release product. c. User must prominently display or hypertext link the Microsoft "Privacy Statement" and the "MicrosoftMapPoint Terms of Use" on the bottom of each web page containing Microsoft data and/or imagery, in the "About" section for desktop applications, or in the end user's terms and conditions for mobile applications, as set forth in Section C above. d. User and its end user may not use the Services: (a) to copy, store, archive, and create a database of the Service generated content, except that geocodes may be stored locally when used in conjunction with the Company Applications; (b) in violation of local, state, federal, or equivalent privacy or other laws or regulations; (c) to create routes by optimizing the order waypoints for multiple vehicles at the same time; (d) to deliver individual maneuvers of a calculated route such that the maneuvers are presented to the end-user, or the end-user is alerted to the maneuvers, in any manner synchronized with the end -user's sensor -based position along such route, including, for example, calculating the end -user's position as the end-user traverses the route and communicating a maneuver to the end-user as the end-user approaches the location pertaining to such maneuver; or (e) in any manner that threatens the integrity, performance, or availability of the Service. e. Users is prohibited from using or providing access to any bird's-eye imagery (or associated metadata). f. Road traffic data in the Service (the "Road Traffic Data") may only be used to calculate and/or derive Traffic Transactions (defined in this Section below) in order to deliver and display such Traffic Transactions on Internet - based web pages (or WAP or substantially similar wireless protocol -based pages, excluding messaging protocols such as email, SMS, MMS or other plain text or rich test messaging), subject to the following restrictions: ■ Road Traffic Data may only be used in combinationwith the Service and not separately. Users may not deconstruct or mix and match the Road Traffic Data with traffic data from another supplier or associate or add any traffic data to or in combination with the Road Traffic Data. Users may only make available the Road Traffic Data for free, and only for the personal use of end users ■ Road Traffic Data may not be licensed to or used by: (i) radio/television stations; (ii) newspaper services; ■ (iii) any websites owned by (i) and (ii); or, (iv) any government-sponsored traveler information services, including, without limitation 511 services, consumer websites, or variable message signs on roads. ■ Road Traffic Data may not be licensed or used: (i) for television or radio broadcast; (ii) as part of or in conjunction with weather related services; (iii) for animation; (iv) for storing or the provision of continuously updated traffic data or alerts to end users, or (v) to develop a standalone (traffic only) traffic application. ■ Road Traffic Data may not be used by Company, Known Users or made available by Company or Known Users to its end users for use, on an Accurate Positioning Device. "Accurate Positioning Device" means a device or system with the capability to determine its physical location within a positioning accuracy of 200 meters or less. If a device which is not an Accurate Positioning Device based on the foregoing definition has the capability to transmit the Data to an Accurate Positioning Device, then such device will be considered an Accurate Positioning Device. "Traffic Transaction" means the provision of any one of the following: (i) presentation of the Road Traffic Data on or related to a map which is presented through icon(s), text or voice; (ii) presentation of the Road Traffic Data in connection with driving directions, direct or indirect use of the Road Traffic Data to determine travel time for all or any portion of a route, and presentation of available traffic information along a route, all through icon(s), text or voice; (iii) direct or indirect use of the Road Traffic Data to calculate or create routes or alternate routes; and (iv) audio or textual presentation of the Road Traffic Data in a manner that does not involve use of a map or map information and which does not include (i)—(iii) above. g. Company and Known Users shall not use the Service to monitor or track the location or movement of Asset(s). "Asset" means one of any of the following classes: person, vehicle, device, or other mobile objects. G-582-A/JK 8 12/11/09 Microsoft data and/or imagery is provided AS -IS without warranty and use of such data and/or imagery accessed by the User shall be at user's sole risk. If User or its end user licenses any application that contains any Microsoft data and/or imagery accessed as part of the Services to the U. S. Government, the following terns shall apply: a) Cost or Pricing Data/Commercial Item. Microsoft represents that the Service is a "CommercialItem" as defined in FAR Part 2.101. Company acknowledges that Microsoft will not, under any circumstances, accept Service Orders under this Use Agreement that would require the submission of cost or pricing data as defined by 48 CFR 15.4 or the submission of noncommercial items. b) Clauses incorporated by Reference. The following FAR clauses are incorporated by reference into this Use Agreement for any orders which are placed on behalf of the United States Federal Government. The version of each clause shall be that version incorporated into Company's prime contract with a United States Federal Government customer. FAR Clause Title 52.219-8 Utilization of Small Business Concerns 52.222-26 Equal Opportunity 52.222-35 Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era. 52.222-36 Affirmative Action for Workers with Disabilities. 52.222-39 Notification of Employee Rights Concerning Payment of Union Dues or Fees 52.222-41 Service Contract Act of 1965 52.222-50 Combating Trafficking in Persons 52.222-51 Exemption from Application of Service Contract Act to Contracts for Maintenance, Calibration, or Repair of Certain Equipment -Requirements 52.222-53 Exemption from Application of the Service Contract Act to Contracts for Certain Services-Reauirements 52.247-64 Preference for Privately Owned U.S.-Flag Commercial Vessels c) Disputes under a Government Contract. Regarding any claims, controversies or disputes concerning matters which are subject to the Contract Disputes Act applicable to the prime contract between you and a United States Federal Government customer, the Parties' rights shall be determined in accordance with that Act. In the event that Microsoft is affected by a decision of the U.S. Government under the prime contract, and you do not elect to take Microsoft's claim forward on your own, Microsoft will have a right of indirect claim and appeal to include your reasonable cooperation in filing and sponsoring a claim against the United States Federal Government customer, which right may be exercised within fifteen (15) business days of your notice Microsoft that the you will not proceed with a claim. Any election by Microsoft to pursue a claim shall be at Microsoft's sole expense, and Microsoft will be responsible for all activities associated with prosecution of Microsoft's appeal. d) Disclosure of Confidentialinformation. You may disclose Microsoft confidential information contained in this Use Agreement or Addendum to a United States Federal Government customer solely as required under your prime contract with United States Federal Government Customer, provided you identify such confidential information in writing as being subject to 18 U.S.C. Section 1905 (Trade Secrets Act) and 5 U.S.C. Section 552 (Freedom of Information Act). G-5 82-A/JK 9 12/11/09 SMALL MUNICIPAL AND COUNTY WiTIM ENTERPRISE LICENSE AGREEMENT (E214-3 05/14/2010) ESRI.380 New York St., Redlands, CA 92373-8100 USA. TEL 909-793-2853• FAX 909-793-5953 This Small Municipal and County Enterprise License Agreement ("ELN") is by and between the organization identified in the ELA Quotation ("Licensee") and Environmental Systems Research Institute, Inc. ("ESRI"), with offices at 380 New York Street, Redlands, California 92373- 8100. Unless otherwise agreed to by the parties, the Effective Date of this ELA is the date of the signature below or, if no date is provided with the signature, the date of ESRI's receipt of Licensee's Purchase Order citing this ELA. This ELA grants Licensee certain rights to use specific ESRI Software, Data, Web Services, and Documentation for a limited, fixed period beginning from the Effective Date and provides tailored maintenance subject to payment of fees and the terms of this ELA. This ELA is composed of (I)this signature page, (ii) the ELA Terms and Conditions, (iii) Exhibit 1—Scope of Use (E300), (iv) Exhibit 2— Training Addendum (E207), and (v) the ELA Quotation, which together constitute the sole and entire agreementof the parties as to the subject matter set forth herein. Should there be any conflict between the terms and conditions of the documents that comprise the ELA, the order of precedence for the documents shall be as follows: (i) this signature page, (ii) the ELA Terms and Conditions, (iii) Exhibit I—Scope of Use (E300), (iv) Exhibit 2—Training Addendum (E207), and (v) the ELA Quotation. In the event Licensee orders training courses, the terms and conditions of the Training Addendum will take precedence over the provision of the ELA with respect to the training courses. Licensee agrees that additional terms and conditions in any Licensee Purchase Order will not apply, and the terms of this ELA will govern. ENTERPRISE SOFTWARE SCHEDULE Unlimited Quantities Desktop Software and Extensions Arclnfo ArcEditor ArcView ArcGIS Desktop Extensions: 3D Analyst, Spatial Analyst, Network Analyst, Geostatistical Analyst, ArcScan forArcGIS, ArcGIS Publisher, MaplexforArcGIS, Schematics, and Job Trackingfor ArcGIS (JTX) Server Software and Extensions ArcGIS Server Workgroup or Enterprise (Advanced, Standard, Arcl MS ArcGIS Server Extensions: 3D, schematics, Geostatistical, Job Tracking, Network, Image, and Spatial Arc�GTFfigine Runtime ArcGIS Engine Runtime Extensions: 3D, Spatial, Geodatabase Update, Network, Schematics, and Maplex Limited Quantities One Annual Subscription to ESRI Developer Network (EDN) Number of ESRI International User Conference Registrations provided annually 4 Number of Tier 1 Help Desk Individualsauthorized to call ESRI 4 Sets of media` 2 • Additional sets of media may be purchased. This ELA supersedes any previous agreements, proposals, presentations, understandings, and arrangements between the parties relating to such subject matter, which is the licensingof the Enterprise Software. Except as provided in Section 9.1 FutureVersions/Updates, any modifications or amendmentsto this ELA must be in writing and signed by an authorized representative of each parry. Licensee may accept this ELA by signing and returning it with an authorizing Purchase Orderthat matches the ELA Quotation, referencesthe ELA, and includes the following statementon the face of its Purchase Order: "THIS PURCHASE ORDER IS GOVERNED BY THE TERMS AND CONDITIONS OF THE ESRI SMALL MUNICIPAL AND COUNTY ELA, AND ADDITIONAL TERMS AND CONDITIONS INTHE PURCHASE ORDERWILL NOTAPPLY." Licenseewill returnthis ELAand its PurchaseOrderto Attn.: ESRI Customer Service, Dept. SG-ELA, 380 New York Street, Redlands, CA 92373 -8100;e -mail ittoservice(cesri.com; orfax itto 909-307-3083. ACCEPTED AND AGREED: Licensee Contact Information Contact Name: Address: By. City, State, ZIP: Signature Telephone: Printed Name: Fax: Title: E-mail: Date: ELA Quotation Number: ESRI Contract Number: F-214-3 Page I of 12 05/14/2010 ELA TERMS AND CONDITIONS ARTICLE I—DEFINITIONS Definitions. The terms used are defined as follows: 8 "Data" means any ESRI or third -party digital dataset(s) including, but not limited to, geographic vector data coordinates, raster, reports, or associated tabular attributes licensed under this ELA. 8 "Deploy," "Deployed," or "Deployment" means to redistribute and install or the redistribution and installation of the Enterprise Software (and related key codes/registration files) or its having been redistributed and installed by Licensee on Licensee's hardware. "Documentation" means all printed and digital materials including, but not limited to, help files, user reference documentation, training documentation, or technical informationand briefings. ■ "ELA Fee" meansthe fee set forth in the ELA Quotation. 8 "ELA Maintenance" means Tier 2 Support, updates, and patches provided by ESRI to Licensee for the Enterprise Software. ■ "ELA Quotation" means the ESRI quote form provided to Licensee for the Small Municipal and County ELA containing the ELA Fee and annual payment schedule. ■ "Enterprise Software" means the items identified in the Enterprise Software Schedule on page 1 of this ELA. 8 "Incident" means a failure of the Software to operate according to the Documentation where such failure substantially impacts operational or functional performance. 8 "License Agreement" and "ELA" are used interchangeably and mean the ELA Terms and Conditions, including Exhibit 1 —Scope of Use (E300), that apply to Enterprise Software provided to Licensee by ESRI under this ELA. ■ "Software" means the actual copy of all or any portion of ESRI's proprietary software technology accessed or downloaded from an authorized ESRI Web site or delivered on any media, in any format, including backups, updates, service packs, patches, hot fixes, or permitted merged copies. ■ "Samples" means sample code, sample applications, add- ons, or sample extensions of Software, Data, Documentation, or Web Services. ■ "Technical Support" means a process to attempt to resolve reported Incidents through error correction: patches: hot fixes; workarounds; replacement deliveries; or any other type of Software, Data, or Documentation corrections or modifications. ■ "Term License" means licenses provided for use during a fixed or limited time period concurrent with the term of this ELA. ■ "Tier 1 Help Desk means Licensee point of contact from which all Tier 1 Support will be given to Licensee. ■ "Tier 1 Support" means the Technical Support provided by the Tier 1 Help Desk as the primary contact to Licensee in attempted resolutionof reported Incidents. ■ "Tier 2 Support" means the Technical Support provided by ESRI to the Tier 1 Help Desk when the Incident cannot be resolved through Tier 1 Support. ■ 'Web Services" means software services or ESRI or third - party data provided by ESRI that perform geographic information system (GIS) functions, tasks, or data services and are accessed over the Internet, excluding Virtual Campus. ARTICLE -INTELLI ECTUAL PROPERTY RIGHTS AND RESERI fATION OF OWNERSHIP b It is licensed and not sold. ESRI and its own the Ente Software and all copies, which are protected by United States and applicable international laws, treaties, and conventions regarding intellectual property and proprietary rights including trade secrets. Licensee agrees to use reasonable means to protect the Enterprise Software from unauthorized use, reproduction, distribution, or publication. ESRI and its third -party licensors reserve all rights not specifically granted in this ELA including the right to change and improve Web Services. ARTICLE 3—GRANT OF LICENSE 3.1 Grant of License. Subject to the terms and conditions of this ELA, ESRI grants to Licensee a personal, nonexclusive, nontransferable Term License solely to a. Use, copy, and Deploy quantities of Enterprise Software as defined in the Enterprise Software Schedule of this ELA for Licensee's own internal use for a term concurrent with this ELA. b. Deploy one subscription of the ESRI Developer Network for use by a single named developer for the term of this ELA. c. Access and use any secure ESRI Web site resources made available to Licensee for Licensee's internal use, provided that Licensee follows ESRI's terms of use policy specified therein. All password or controlled access information provided by ESRI shall be treated as ESRI confidential information. d. Use Enterprise Software in accordance with Exhibit 1 (provided that all licenses are Term Licenses). 3.2 Consultant Access. Subject to 3.1, Licensee may provide access to the Enterprise Software to any consultant or contractor of Licensee, provided consultants' and contractors' use is for the sole benefit of Licensee while (i) working on-site at Licensee's facilities, (ii) remotely accessing or using Enterprise Software from Licensee's on-site computers or machines, or (iii) remotely usinglaccessing Enterprise Software from a third party's computers or machines under contract to the Licensee. Licensee shall be responsible for compliance by consultants or contractors with the terms and conditions of this ELA. Licensee shall require consultant or contractor to discontinue access to and use of Enterprise Software upon completion of work for Licensee. ARTICLE 4—SCOPE OF USE 4.1 Permitted Uses a. Licensee may install and store the Software, Data, and Documentation on electronic storage device(s). b. Licensee may make one (1) copy of the Software, Data, and Documentation for archival purposes. Licensee may make routine computer backups. c Licensee may customize the Software using any (i) macro or scripting language, (ii) published application programming interface (API), or (iii)source or object code libraries, but only to the extent that such customization is described in the Documentation. d. Licensee may use, copy, or prepare derivative works of the Documentation supplied in digital format and thereafter reproduce, display, and redistribute the customized documentation only for Licensee's own internal use. Portion(s) of Documentation supplied in digital format merged with other software and printed or digital documentation are subject to this ELA. Licensee shall include the following copyright attribution notice acknowledging the proprietary rights of ESRI and its licensor(s): "Portions of this document include intellectual property of ESRI and its licensor(s) and are used herein under license. Copyright© [Insert the actual copyright date(s) from the source materials] ESRI and its licensor(s). All rights reserved." E214-3 Page 2 of 12 05/14/2010 4.2 Uses Not Permitted a. Except as provided herein, Licenseeshall not sell, rent, lease, sublicense, lend, assign, or time-share the Enterprise Software. Licensee shall not act as a service bureau or commercial application service provider (ASP) that allows third -party access to the Enterprise Software. Licensee shall not use Enterprise Software for a site or service and operate the site or the service for a profit or generate revenue through direct or indirect methods (e.g., advertising or charging for access to the site or service). b. Except as provided herein, Licensee shall not redistribute the Software to third parties, in whole or in part, including, but not limited to, extensions, components, or DLLs. c. Licensee shall not reverse engineer, decompile, or disassemblethe Enterprise Software, exceptto the extentthat such activity is expressly permitted by applicable law notwithstanding this restriction. d. Except to the extent that applicable law prohibits this restriction, Licensee shall not make any attempt to circumvent the technological measures that control access to, or use of, the Enterprise Software. e. Except as provided herein, Licensee shall not redistribute the Software activation number(s), registration number/license authorizationfile(s), developer licensefile(s), or Web Services access codes to third parties. f. Licensee shall not use the Software or Web Services to transfer or exchange any material where such transfer or exchange is prohibited by intellectual property laws or any other applicable laws. g. Licensee shall not remove or obscure any ESRI or its licensor(s) patent, copyright, trademark, or proprietary rights notices contained in or affixed to the Enterprise Software. h. Licensee shall not unbundle individual or component parts of the Software or Data for independent use. i. Hard -copy Documentation may not be copied. j. Licensee shall not use, transfer, redistribute, or Deploy Enterprise Software outside the United States. ARTICLE 5—TERM AND TERMINATION AND EXPIRATION 5.1 Term. The term of the ELA shall be three (3) years from the Effective Date, unless this ELA is terminated earlier as provided herein. The term of all licenses and the authorized period of use for all Enterprise Software Deployed shall be concurrent with the term of this ELA. No indefinite or perpetual term license grants are provided with this ELA. 5.2 Termination for Lack of Funds. Either party may terminate this ELA for Lack of Funds. Lack of Funds is the inability of Licensee to secure appropriation of funds through the legislative or governing body's approval process for annual paymentsdue. 5.3 Termination for a Material Breach. Either party may terminate this ELA for a material breach by the other party. The breaching party shall be given a period of ten (10) days from date of written notice to cure any material breach. 5A No Use upon Expiration or Termination. Upon expiration or termination of this ELA, all Enterprise Software Deployed shall terminate. Licensee shall cease access and use of Web Services and clear Web Services client -side data cache and cease use, uninstall, remove, and destroy all Deployed Software, Data, and Documentation and any whole or partial copies, modifications, media, or merged portions in any form and execute and deliver evidence of such actions to ESRI. ELA Maintenance, Virtual Campus access, and User Conference Registrations shall also terminate. ARTICLE 6—LIMITED WARRANTIES AND DISCLAIMERS 6.1 Limited Warranties. Except as otherwise provided for in this Article 6, ESRI warrants that (i) the unmodified Software will substantially conform to the published Documentation and (ii)the media upon which the Software, Data, and Documentation are provided will be free from defects in materials and workmanship under normal use and service for a period of ninety (90) days from the date of receipt. 6.2 Data and Web Services Disclaimer. The Data and Web Services may contain some nonconformities, defects, errors, or omissions. THE DATA AND WEB SERVICES ARE PROVIDED "AS Is" WITHOUT WARRANTY OF ANY KIND. Without limiting the generality of the preceding sentence, ESRI and its licensor(s) do not warrant that the Data and Web Services will meet Licensee's needs or expectations, that the use of the Data and Web Services will be uninterrupted, or that all nonconformities can or will be corrected. ESRI and its licensor(s) are not inviting reliance on this Data or Web Services, and Licensee should always verify actual Data or Web Services. 6.3 Special Disclaimer. SAMPLES, PATCHES, AND HOT FIXES ARE DELIVERED "AS Is" WITHOUT WARRANTY OF ANY KIND. LICENSEE ASSUMES ALL RISK AS TO THE QUALITYAND PERFORMANCEOF THE SAMPLES. PATCHES. AND HOT FIXES. 6.4 Internet Disclaimer. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATEAND PUBLIC NETWORKS, AND THAT (i) THE INTERNET IS NOT A SECURE INFRASTRUCTURE, (ii) THE PARTIES HAVE NO CONTROL OVER THE INTERNET, AND (iii) NONE OF THE PARTIES SHALL BE LIABLE FOR DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE WEB SERVICE. 6.5 General Disclaimer. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, ESRI DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE. SYSTEM INTEGRATION; AND NONINFRINGEMENT OF INTELLECTUALPROPERTY RIGHTS. ESRI DOES NOT WARRANT AND DISCLAIMS THAT THE ENTERPRISE SOFTWARE WILL MEET LICENSEE'S NEEDS; THAT LICENSEES OPERATION OF THE SAME WILL BE UNINTERRUPTED, ERROR FREE, FAULT TOLERANT, OR FAIL-SAFE; OR THATALL NONCONFORMITIES CAN OR WILL BE CORRECTED. SOFTWARE, DATA, WEB SERVICES, AND DOCUMENTATION ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS THAT MAY LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL PROPERTY/ ENVIRONMENTAL DAMAGE. ANY SUCH USE SHALL BE AT LICENSEES OWN RISKAND COST. 6.6 Exclusive Remedy. Licensee's exclusive remedy and ESRI's entire liability for breach of the limited warranties set forth in this Article 6 shall be limited, at ESRI's sole discretion, to (i)replacement of any defective media; (ii) repair, correction, or a workaround for the Software subject to the ESRI Maintenance Program found at www.esri.com/legal/maintenance.html; or (iii) return of the license fees paid by Licensee for the Software or Documentation that does not meet ESRI's limited warranty, provided that Licensee uninstalls. removes, and destroys all copies of the Software or Documentation and executes and delivers evidence of such actions to ESRI. E214-3 Page 3 of 12 05/14/2010 ARTICLE 7—LIMITATION OF LIABILITY 7.1 Disclaimer of Certain Types of Liability. ESRI AND ITS LICENSOR(S) SHALL NOT BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOST PROFITS; LOST SALES OR BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS COMMITMENTS; OR LOSS OF ANY GOODWILL OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL. OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS ELA OR USE OF THE ENTERPRISE SOFTWARE. HOWEVER CAUSED ON ANY THEORY OF LIABILITY, WHETHER OR NOT ESRI OR ITS LICENSOR(S) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 72 General Limitation of Liability. EXCEPT AS PROVIDED IN ARTICLE 8—INFRINGEMENT INDEMNITY, ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID BY LICENSEE FOR ENTERPRISE SOFTWARE PURSUANT TO THIS ELA. 7.3 Applicability of Disclaimers and Limitations. The parties agree that ESRI has set its fees and entered into this ELA in reliance upon the disclaimers and limitationsset forth herein, that the same reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ARTICLE &INFRINGEMENT INDEMNITY 8.1 ESRI shall defend, indemnify, and hold harmless Licensee from and against any loss, liability, cost, or expense, including reasonable attorneys' fees, which may be incurred by Licensee against any claims, actions, or demands by a third parry alleging that the Software infringes a U.S. patent, copyright, or trademark provided a. Licensee promptly notifies ESRI inwriting of the claim; b. Licensee provides documents clearly describing the allegations of infringement; c. ESRI has sole control of the defense of any actions and negotiations related to the defense or settlement of any claim; and d. Licensee cooperates fully in the defenseof the claim. 8.2 If the Software is found to infringe a U.S. patent, copyright, or trademark, ESRI, at its own expense, may either (I) obtain rights for Licensee to continue using the Software or (ii) modify the allegedly infringing elements of the Software while maintaining substantially similar software functionality or data/informational content. If neither alternative is commercially reasonable, the infringing items shall be returned to ESRI, the license shall terminate, and Licensee shall uninstallthe infringing items. ESRI's entire liability shall then be to indemnify Licensee pursuant to section 8.1 and to refund a portion of the fees paid by Licensee in the current fee payment period. The refund will be calculated for the time remaining for the fee payment period, starting from the noticedate of infringementto the end of the fee payment period. 8.3 ESRI shall have no obligation to defend Licensee or to pay any resulting costs, damages, or attorneys' fees for any claims or demands alleging direct or contributory infringement of the Software by (i) the combination of or integration with a product, process, or system not supplied by ESRI; (ii)material alteration by anyone other than ESRI or contractors acting on behalf of ESRI; (iii) use after Licensee has been notified of possible infringement; or (iv) use after modifications are provided or a return is ordered by ESRI under section 8.2. 8.4 In no event shall the indemnification set forth in this Article 8 apply to any Samples delivered hereunder. THE FOREGOING STATES THE ENTIRE OBLIGATION OF ESRI AND ITS DISTRIBUTOR WITH RESPECT TO INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. ARTICLE 9—GENERAL PROVISIONS 9.1 Future Versions/Updates. Updated or new Enterprise Software may require additional or revised terms and conditions. Terms and conditions subject to revision are limited to Article 1— Definitions, Article 4—Scope of Use, and Exhibit1—Scope of Use (E300) or any term as required by law. ESRI may provide notice of the revisions to Licensee in writing or by posting them on ESRI's Web site at www.esri.com/legal. The revisions shall be incorporated into this ELA upon use of the updated or new Enterprise Software. Should Licensee reject the revisions, then Licensee shall not install or use the revised, updated, or new Enterprise Software. 9.2 Export Control Regulations. Licensee expressly acknowledges and agrees that Licensee shall not export, reexport, transfer, or release the Enterprise Software, in whole or in part, to (i)any US. embargoed country (or to a national or resident of any U.S. embargoed country); (ii) any person on the U.S. Treasury Department's list of Specially Designated Nationals; (iii)any person or entity on the U.S. Commerce Department's Denied Persons List, Entity List, or Unverified List; or (iv) any person or entity to which such export or reexport violates any U.S. export control laws or regulations including, but not limited to, the terms of any export license or licensing provision and any amendments and supplemental additions to U.S. export laws as they may occur from time to time. 9.3 Taxes and Fees. Sales or use taxes for the fees quoted are as required by law. The tax amount may change depending on the time elapsed between this quote and date of the invoice. ESRI will include applicable sales or use taxes on your invoice unless you provide proof with your order that your organization or use of the product is tax exempt. 9.4 No Implied Waivers. The failure of either parry to enforce any provision of this ELA shall not be deemed a waiver of the provisions or of the right of such parry thereafter to enforce that or any other provision. 9.5 Severability. The parties agree that if any provision of this ELA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessaryto make the intent of the language enforceable. 9.6 Successor and Assigns. Licensee shall not assign, sublicense, or transfer Licensee's rights or delegate its obligations under this ELA without ESRI's prior written consent, and any attempt to do so without consent shall be void. This ELA shall be binding upon the respective successors and assigns of the parties to this ELA. 9.7 Survival of Terms. The provisions of Articles 2, 5, 6, 7, 8, and 9 of this ELA shall survive the expiration or termination of this ELA. 9.8 Equitable Relief. The parties agree that any breach of this ELA may cause irreparabledamage and that, in the event of such breach, in addition to any and all remedies at law, a party shall E214-3 Page 4 of 12 05/14/2010 have the right to seek an injunction, specific performance, or other equitable relief in any court of competentjurisdiction. 9.9 Governing Law. This ELA shall be governed by and construed in accordance with the laws of the state in which Licenseeis located without referenceto conflict of laws principles, except that U.S. federal law shall govern in matters of intellectual property. ARTICLE 10—ELA MAINTENANCE ELA Maintenance for Software provided under this ELA is included with the ELA Fee. ELA Maintenance includes standard maintenance benefits specified in the most current applicable ESRI U.S. Software Maintenance Program document (found at www.esri.com/legal) as modified by this Article 10—ELA Maintenance. ELA Maintenance does not include Technical Support for Web Services. a. Tier 1 Support Provided by Licensee (1) Licensee shall provide Tier 1 Support through the Tier 1 Help Deskto all Licensee's authorized users. (2) The Tier 1 Help Desk will use analysts fully trained in the Software they are supporting. (3) At a minimum, Tier 1 Support will include those activities that assist the user in resolving how-to and operational questions as well as questions on installationand troubleshooting procedures. (4) Tier 1 Support analysts will be the initial points of contact for all questions and Incidents. Tier 1 Support analysts shall obtain a full description of each reported Incident and the system configuration from Licensee user. This may include obtaining any customizations, code samples, or data involved in the Incident. The analyst may also use any other information and databases that may be developed to satisfactorily resolve Incidents. (5) If the Tier 1 Help Desk cannot resolve the Incident, an authorized Tier 1 Help Desk individual may contact ESRI Tier 2 Support. The Tier 1 Help Desk shall provide support in such a way as to minimize repeat calls and make solutions to problems available to Licensee. (6) Tier 1 Help Desk individuals identified by Licensee are the only individuals (callers) authorized to contact ESRI directly for Tier 2 Support. Licensee may revise named individuals by written notice. b. Tier 2 Support Provided by ESRI (1) ESRI shall log the calls received from Tier 1 Help Desk individuals. (2) ESRI shall review all information collected by and received from Tier 1 Help Desk individuals including preliminary documented troubleshooting provided by Tier 1 Help Deskwhen Tier 2 Support is required. (3) ESRI may request that Tier 1 Help Desk individuals provide verification of information, additional information, or answers to additional questions to supplement any preliminary information gathering or troubleshooting performed by Tier 1 Help Desk. (4) ESRI shall attempt to resolve the Incidents submitted by Tier 1 Help Desk by assisting the Tier 1 Help Desk individuals. (5) When the Incident is resolved, ESRI shall communicate the information to the Tier 1 Help Desk individuals, and the Tier 1 Help Desk shall disseminate the resolutionto the Licensee user. ESRI may, at ESRI's sole discretion, make patches, hot fixes, or updates available for downloading from ESRI's Web site or deliver them on media. ARTICLE 11—ORDERING, ADMINISTRATIVE PROCEDURES, DELIVERY, AND DEPLOYMENT 11.1 Purchase Orders, Delivery, and Deployment a. Licensee shall issue a Purchase Order upon execution of the ELA and annually thereafter in accordance with the ELA Quotation. Payment shall be due and payable within thirty (30) days of the anniversary date of the Effective Date, with the initial payment due within thirty (30) days of execution of the ELA. ESRI's Federal ID Number is 95-2775-732. b. Upon receipt of the initial Purchase Order from Licensee, ESRI shall deliver media containing the Enterprise Software to Licensee for its Deployment activities. ESRI shall ship the media to the ship -to address identified on the Purchase Order, FOB Destination, with shipping charges prepaid. c. ESRI shall provide registration numbers or keycodes, as applicable, to activate the nondestructive copy protection programthat enablesthe Enterprise Software to operate. d. Licensee shall Deploy, install, configure, and track the Deployment status of the Enterprise Software. 11.2 Purchase Order Requirements a. All orders pertaining to this ELA shall be processed through Licensee's centralized point of contact. b. The following information shall be included in each Purchase Order: (1) Licensee name; ESRI customer number, if known; and bill -to and ship -to addresses (2) Purchase Order number (3) Applicable annual payment due (4) On the face page of its Purchase Order (or ordering document), Licensee shall insert a reference to the ELA and the following statement: "THIS PURCHASE ORDER S GOVERNED BY THE TERMS AND CONDITIONS OF THE ESRI SMALL MUNICIPAL AND COUNTY ELA, AND ADDITIONAL TERMS AND CONDITIONS IN THE PURCHASE ORDER WILL NOTAPPLY." ARTICLE 12—ENDORSEMENTAND PUBLICITY This ELA shall not be construed or interpreted as an exclusive dealings agreement or an endorsement of ESRI by Licensee. Licensee agrees that upon execution of the ELA, ESRI may publicize the existence of this ELA. ARTICLE 13—ADMINISTRATIVE REQUIREMENTS 13.1 OEM Licenses. If Licensee obtains Software, Data, Web Services, or any component thereof as part of an original equipment manufacturer (OEM) software program or product developed and licensed by an OEM business partner of ESRI, Licensee shall not be entitled to or seek any discount from the OEM business partner or ESRI, directly or indirectly, as a result of or based on the availability of such Software, Data, or Web Services as Enterprise Software under this ELA. In addition, such Software, Data, Web Services, or any component thereof included in the OEM software program or product will be licensed through the license agreement provided by the OEM business partner and not through this ELA. 13.2 Product Obsolescence. During the term of this ELA, some Enterprise Software items may become obsolete, may no longer be commercially offered, or may no longer be available for unlimited quantity Deployment. Licensee may continue to use such Enterprise Software that has been Deployed for the term of the ELA, but updates for such obsolete Enterprise Software may not be available. ESRI's Product Life Cycle Support Policy, available at httr)://resources.arcais.com/content/oroduct- life-cvcles, defines the support phases and overall support plans. ELA Maintenance shall be subject to the Product Life Cycle E214-3 Page 5 of 12 05/14/2010 Support Status, which can be found hfti):Hresources.arc(iis.com/content/i)roduct-life-cycles. 13.3 Renewal. Upon expiration of this ELA, the parties will evaluate Licensee's requirements. Any follow-on ELA will be offered in accordance with license terms and condition and pricing then in effect and based on Licensee's then current population count. ARTICLE 14—OPTIONAL ITEMS If additional Software identified in the ELA Quotation is acquired, it will be deemed added to the Enterprise Software Schedule and subject to the t e n s of this EIA. If training courses identified in the ELA Quotation are acquired, they will be subject to the terms found in Exhibit 2—Training Addendum. In the event Licensee orders training courses, the t e n s and conditions cf the Training Addendum will take precedence over the provision of the ELA with respectto the training courses. E214-3 Page 6 of 12 05/14/2010 EXHIBIT 1 SCOPE OF USE (E300 05/14/2010) The scope of use for the Software, Data, Web Services, and Documentation identified below is described in the applicable footnotes identified in parentheses. Software ■ ArcExplorer-Java and Windows Editions (20 and 25) ■ ArcGIS API for iPhone (1, 16, 25, and 33) ■ ArcGIS Desktop - ArcInfo (either 1 or 2 and 25, 26, 33, 44, and 45) - ArcEditor (either 1 or 2 and 25, 26, 33, 44, and 45) - ArcView (either 1 or 2 and 25, 33, 44, and 45) ■ ArcGIS Desktop Extensions (7) ■ ArcGIS Engine Developer Kit and Extensions (1, 14,15, 22, 25, 26, and 43) ■ ArcGIS Engine Runtime and Extensions (either 1 or 2 and 15, 22, 25, 26, and 33) ■ ArcGIS Explorer (20, 25, and 33) ■ ArcGIS for AutoCAD (1, 20, and 25) ■ ArcGIS for iPhone (1, 20, 25, and 33) ■ ArcGIS Mapping - For Excel (5, 6, 33, and 35) - For SharePoint (5, 6, 31, 33, 35, and 47) . ArcGIS Mobile Deployments .(1, 15,16, 25, and 33) . ArcGIS Server - Workgroup (either 3 or 5 and 8, 9, 25, 28, 29, 30, 32, 33, 38, 39, 40, and 45) - Enterprise (either 3, 4, or 5 and 8, 9, 25, 27, 31, 33, 38, 39, 40, and 45) . ArcGIS Server Extensions - ArcGIS Server Geoportal Extension (either 3, 4, or 5 and 7 and 52) - ArcGIS Server Image Extension (7, 8, and 42) - ArcGIS Server Image Extension Service Editor (1) - Other Extensions (7) . ArcGIS Web Mapping APIs (including JavaScriptTM, Adobe , `lexT', Microsoft® SilverlighfTm/WPFT"', SOAP, and REST) (6, 33, 35, and 53) ■ ArcIMS ArcIMS and Extensions (either 3, 4, or 5 and 8, 10, 31, and 45) ■ ArcLogistics - Desktop (either 1 or 2 and 25) - Using ArcGIS Online (6, 20, 25, 34, 35, and 46) - Using ArcGIS Server (6, 20, 25, 34, 35, and 46) - Navigator (1 and 46) ■ ArcPad (1, 12,13, 25, and 33) ■ ArcReader (20, 25, 33, and 45) ■ ArcView 3.x and Extensions (1, 7, and 17) ■ ESRI Aeronautical Solution (either 1 or 2) ■ ESRI Business Analyst (either 1 or 2 and 25, 33, 45, and 48) ■ ESRI Business Analyst Server (either 3, 4, or 5 and 8, 9, 21, 25, 28, 31, 33, 39, 40, 45, and 48) ■ ESRI Business Analyst Server Developer (6, 25, 33, 35, and 51) ■ ESRI Defense Mapping (either 1 or 2) ■ ESRI Developer Network (EDN) Software, Web Services, and Data (6, 7, 24, 25, 26, 33, 34, and 35) ■ ESRI Nautical Solution (either 1 or 2) ■ ESRI Production Mapping (either 1 or 2) ■ Geoportal Clients for ArcGIS (7, 20, and 52) ■ Maplt (11, 25, 31, 33, 35, 49, and 50) ■ MapObjects-Java Edition (1, 5, 8, 15, 18, and 19) ■ MapObjects LT (1, 14, and 16) . MapObjects-Windows Edition (1, 14, 15, 16, and 18) ■ MOLE (1) ■ NetEngine Internet (5) ■ Tracking Server (either 4 or 5 and 31) Web Services ■ ArcGIS Online Services (6, 25, 33, 34, and 35) Data ■ Address Coder (either 1, 2, or 5 and 21, 22, 25, and 48) ■ ArcGIS Data Appliance (6, 23, 25, and 41) ■ ESRI Data & Maps (either 1, 2, 3, 4, or 5 and 23 and 37) ■ ESRI Data (either 1, 2, or 5 and 25 and 48) - Demographic, Consumer Spending, Market Potential, Retail Marketplace, Business, Traffic, Shopping Center, Cable Boundaries, Banking, and Crime ■ Sourcebook -America (1 and 21) ■ StreetMap Premium (either 1, 2, 4, or 5 and 6 and 25) ■ Tapestry Segmentation (either 1, 2, or 5 and 21 and 48) E214-3 Page 7 of 12 05/14/2010 1. "Single Use License." Licensee may permit a single authorized end user to install and use the Software, Data, and Documentation on a single computer for use by that end user on the computer on which the Software is installed. Remote access is not permitted. Licensee may permit the single authorized end user to make a second copy for end user's exclusive use on a portable computer as long as only one (1) copy of the Software, Data, and Documentation is in use at any one (1) time. No other end user may use the Software, Data, or Documentation under the same license at the same time for any other purpose. 2. "ConcurrentUse License." Licensee may install and use the Software, Data, and Documentation on computer(s) on a network, but the number of simultaneous users may not exceed the number of licenses acquired. No other end user may use the Software, Data, or Documentation under the same license at the same time for any other purpose. 3. "Development Server License." Licensee may install and use the Software on a single computer to design and build applications that interface with or utilize server Software as described in the Documentation. 4. "Staging Server License." In addition to the Development Server License rights, Licensee may use and install the Software for the following purposes: user acceptance testing, performance testing, load testing of other third -party software, staging new commercial data updates, and training activities. 5. "Deployment Server License." In addition to the Staging Server License rights, Licensee may install and use the Software or Data to provide services to multiple users on the same or other computer(s). 6. License is provided only as a Term License. "Term License" means license provided for use in a limited time period or on a subscription or transaction basis. 7. Extensions to Software programs follow the same scope of use as that granted for the corresponding Software programs. 8. The administration tools for the Software may be copied and redistributed throughout Licensee's organization. 9. User-developedArcGIS Server administration tools may be copied throughout Licensee's organization, but the ArcCatalog application (found in ArcGIS Desktop) may not be copied. 10. The ArcIMS license includes the right to deploy MapObjects—Windows Edition applications on the Internet or intranet. Licensee shall not develop client/server solutions with the ArcIMS —Java Archive (JAR) files without a license for the MapObjects—Java Edition developer kit. 11. Licensee may install and use the Software to provide services to multiple users on the same or other computer(s). The Software is licensed per server. The licensed server is the server on which Licensee installs the Spatial Data Service. 12. Software is only licensed for navigational use when used in conjunction with ArcLogistics. 13. "Dual Use License" means the Software may be installed on a desktop computer and used simultaneously with either a personal digital assistant (PDA) or handheld mobile computer as long as the Software is only used by a single individual at any one (1) time. 14. Developers must include the following attribution with any deployed MapObjects application: "Portions of this computer program are owned by LizardTech, Inc., and are Copyright © 1995-2002 LizardTech, Inc., and/or the University of California. All rights reserved. U.S. Patent No. 5,710,835." 15. Deployment licenses for desktop or Internet application(s) may be subject to payment of additional license fees. 16. Licensee may deliver applications to its sublicensee(s) provided Licensee uses a written sublicense agreementthat protects ESRI's rights in its Software, Data, Web Services, and Documentation to the same extent as the ESRI License Agreement including, but not limited to, the following terms: Sublicensee may not reverse engineer, decompile, or disassemble the ESRI Software, Data, Web Services, or Documentation, except to the extent permitted by applicable law; copy for commercial use; transfer; or assign its rights under the license grant; Sublicensee may not use any ESRI Software, Data, Web Services, or Documentation, in whole or in part, separate from Licensee's executable application; and Third -party dependent or required components are redistributable subject to permission from the owner or author. 17. Licensee may use Business Objects Crystal Reports software only with the ArcView 3.x Software with which it was acquired and subject to the Crystal Reports License Agreement available on the media. Licensee may not use a software program or system to cache or queue report requests. 18. The deployment license is per application per computer. 19. MapObjects—Java Edition contains Java Archive files, which indicate they are authentic ESRI-certificated files when used over the Internet. Licensee shall not use ESRI certification or reference ESRI as a source of trusted content in any modifiedMapObjects—Java Archive files. Licensee may deploy the unmodified Java class ESRI-certified libraries as an integral part of the Licensee's application(s). 20. Licensee may reproduce and deploy the Software provided all the following occur: (a) the Software is reproduced and deployed in its entirety; (b) a license agreement accompanies each copy of the Software that protects the Software to the same extent as the ESRI License Agreement, and the recipient agrees to be bound by the terms and conditions of the E214-3 Page 8 of 12 05/14/2M license agreement; (c) all copyright and trademark attributions/notices are reproduced; and (d) there is no charge or fee attributable to the use of the Software. 21. Licensee shall not withhold any substantial right (e,g., extension of credit) from any individual based solely on the individual's place of residence, as profiled in the Tapestry Segmentation system. 22. (a) ArcGIS Engine Runtime licenses shall not be used for Internet and server development and deployment; (b) an end user must license either ArcGIS Engine Runtime Software or other ArcGIS Desktop Software (ArcView, ArcEditor, or ArcInfo) to obtain the right to run an ArcGIS Engine application on one (1) computer; and (c)the ArcGIS Engine Runtime extensions shall not be used in combination with ArcGIS Desktop Software to run ArcGIS Engine applications. A single user can have multiple applications installed on one (1) computer for use only by that end user. 23. Licensee may redistribute the Data as described in the RedistributionRights Matrix available at httu://www.esri.com/ lesal/, in the Help system, or in supporting metadata files, subject to the specific attribution descriptions and requirements for the dataset accessed. 24. EDN Software, Web Services, and Data may only be used by one (1) named developer per subscription solely for the purposes of research, development, testing, and demonstration of a prototype application. EDN server Software and Data may be installed on multiple computers for use by any named EDN developer. 25. Use of included third -party owned data shall be subject to the Use of Data Restrictions found at httu://www.esri.com/ leaal/ for the specific Data accessed. The Use of Data Restrictions may be modified by ESRI from time to time. If a modification is unacceptable to Licensee, Licensee may cancel a subscription upon written notice to ESRI, or discontinue use of the Data or Web Services, as applicable. If Licensee continues to use the Data or Web Services, Licensee will be deemed to have accepted the modification. 26. An ArcSDE Personal Edition geodatabase is restricted to four (4) gigabytes of Licensee data. 27. ArcGIS Server Web ADF Runtime Software may not be deployed independent of Licensee's ArcGIS Server Enterprise configuration. 28. Use is limited to ten (10) concurrent end users of applications other than ArcGIS Server applications. This restriction includes use of ArcGIS Desktop Software, ArcGIS Engine Software, and third -party applications that connect directly to any ArcGIS Server geodatabase. There are no limitations on the number of connections from Web applications. 29. Software can only be used with SQL Server 2005/2008 Express. 30. Use is restricted to a maximum of four (4) gigabytes of Licensee data. 31. Redundant Software installation(s) for failover operations is allowed but can only be operational during the period the primary site is nonoperational. The redundant Software installation(s) shall remain dormant, except for system maintenance and updating of databases, while the primary site or any other redundant site is operational. 32. No redundant Software installation is permitted. 33. Licensee's access to and use of ArcGIS Online Services or Microsoft Bing Maps are conditioned upon Licensee's acceptance of the ESRI Web Site and Service Terms of Use Agreement and the terms and conditions specific to ArcGIS Online Services or Microsoft Bing Maps found at htto://www,esri.coin/legal/. 34. Licensee's organization is limited to the number of specified credits, transactions, geography, or number of users as described in the online product description. 35. Licensed end users shall not share the client -side data cache derived from ArcGIS Online Services with other licensed end users or third parties. 36. Reserved. 37. Data provided with StreetMap USA may be used for mapping, geocoding, and routing purposes but is not licensed for dynamic routing purposes. For instance, StreetMap USA may not be used to alert a user about upcoming maneuvers (such as warning of an upcoming turn) or to calculate an alternate route if a turn is missed. 38. The ArcGIS Server 3D extension included with ArcGIS Server Standard (Workgroup or Enterprise) may only be used for generating globe data cachets) or publishing a globe document as an ArcGIS Globe Service. No other use of the ArcGIS Server 3D extension Software is permitted with ArcGIS Server Standard. 39. Any editing functionality included with ArcGIS Server is not permitted for use with ArcGIS Server Basic (Workgroup or Enterprise). 40. Geospatial Enterprise JavaBeans (EJB) provided with ArcGIS Server (Workgroup or Enterprise) is permitted for use only with ArcGIS Server Advanced. 41. Licensee may only use Data from a single state with the Single State version of ArcGIS Data Appliance. This restriction applies to a large-scale (i.e., scale levels below 1:100,000) street map, transportation layer, boundaries and places layer, and one (1) -meter or better resolution imagery included in the USA Collection. This restriction does not apply to the small-scale (i.e., scale levels above 1:100,000) maps provided in the World Collection, which are intended for display at global and regional scales. 42. Licensee has the right to one (1) desktop deployment of the ArcGIS Server Image extension Service Definition Editor for every four (4) cores of ArcGIS Server Image extension that are licensed. E214-3 Page 9 of 12 05/14/20.0 43. Licensee may develop an unlimited number of applications on a single computer and deliver the applications to end users with or without the ArcGIS Engine Runtime Software. 44. For any operating system environment in which Licensee runs instances of the Concurrent Use License management software, Licensee may run up to the same number of passive failover instances of the Concurrent Use License management software in a separate operating system environment for temporary failover support. 45. Data licensed with ESRI Business Analyst and ESRI Business Analyst Server is restricted for use only in conjunction with the respective Business Analyst extension. 46. Licensee should not follow any route suggestions that appear to be hazardous, unsafe, or illegal. Licensee assumes all risk of using this navigation Software. 47. Licensee may install and use the Software to provide services to multiple users on the same or other computer(s). The Software is licensed per server. The licensed server is the server on which Licensee has also installed the Microsoft SharePoint Server. 48. Licensee may include reports and maps created from the Software or Data in hard -copy or read-only format for presentation packages or marketing studies for subsidiaries and customers. The total content of the ESRI reports and maps must be less than twenty percent (20%) of Licensee's total content of the presentation package or marketing study. Full, complete, stand-alone reports or maps created from the Software or Data and not part of a presentation package or marketing study cannot be resold, sublicensed, or otherwise transferred without prior written permission of ESRI. Licensee's third -party customer may only receive reports and maps generated by Licensee and may only use the maps and reports received from Licensee for internal purposes. In no case shall Licensee redistribute the Data in digital formats. 49. ESRI MapIt Silverlight Web or WPF applications may not be deployed independent of Licensee's MapIt deployment configuration. 50. Licensee has the right to one (1) desktop deployment of Spatial Data Assistant for each ESRI MapIt server license. 51. ESRI Business Analyst Server Developer and Data may only be installed on one (1) serverper license solely for the purposes of research, development, testing, and demonstration of a prototype application. 52. Source code is the intellectual property of ESRI. Licensee shall treat any source code file identified as "Software" in a README file or at httt)://www.esri.com/leizal/ as a trade secret for Licensee's own internal use only and not for further redistribution or access by unlicensed third parties. Licensee shall not modify the Software, Documentation, Data, or source code to incorporate, embed, link, or otherwise include any code, libraries, or data licensed or distributed under an open source licensing or distribution models similar to Free Software Foundation's GNU General Public License (GPL) or GPL-compliant licenses, including, without limitation, the Artistic License (e.g., Perl), the Mozilla Public License, the Netscape Public License, and the Sun Community or Industry Standards License, that could require a user to make its proprietary source code available to a requesting third party. 53. Deployment license options are as follows: a. A license for Web applications is per the principal registered unique domain identifier. Domain is the Internet domain name registered with a domain name registrar. For example, in example.com or example.com.xx (where xx is a registered country code), example is the principal registered unique domain identifier. b. A license for desktop applications is per organization. For the purposes of this license, organization is equivalent to a principal registered unique domain identifier (as described above). For example, desktop applications can be used by any employee of the organization with the principal registered unique domain identifier. There is no limit to the number of applications that can be built and deployed within an organization. E214-3 Page 10 of 12 05/14/2010 EXHIBIT 2 TRAINING ADDENDUM (E207CWM 9/09) ARTICLE I—TRAINING DESCRIPTION ESRI offers instructor -led training related to the use of its proprietary GIS software. ESRI will provide to Licensee a fixed numberof days of Instructor -Led Training, as defined in the Small Enterprise Training Package included in the ELA. Instructor -led training events occur at an ESRI Learning Center or via the Web. The ESRI software training course(s) to be conducted, location, and schedule dates are set forth in the ESRI Course Catalog located on ESRI's Training Web site (http://traininp.esri.com). All courses are conducted in substantial conformity with course descriptions outlined on the ESRI Training Web site. ESRI reserves the right to modify course content when necessary due to software technical capabilities or limitations. ARTICLE 2—ESRI'S RESPONSIBILITIES ESRI will provide an instructor qualified to conduct the course(s) as well as all necessary training materials sufficient for the number of registered participants (hereinafter "Student(s)") on the scheduled dates. ESRI will provide each Studentwith a course manualwhere applicable. ESRI will confirm Learning Center training class scheduled dates approximately ten (10) business days prior to the class start date. ARTICLE 3—LICENSEES RESPONSIBILITIES ■ Licensee must ensure the protection of ESRI's copyrights. Licensee shall neither copy or distribute nor permit a third party to copy or distribute any of ESRI's training material(s). ■ Licensee must not resell seat(s) to an ESRI training class unless explicitly authorized in writing by ESRI. ■ Licensee must confirm that all registered Students meet the minimum prerequisites for the applicable class set forth on ESRI's Training Web site. ■ Licensee must submit registrations with a confirmed payment commitment at least seven (7) business days before the class start date. If Licensee submits a registration without a confirmed payment, ESRI will not confirm the seat reservation. The reservation will be added to the waiting list pending payment confirmation and subject to availability. ■ U.S. government export control laws and regulations prohibit U.S. persons from engaging in transactions with certain denied persons found on various U.S. Government Denied Persons lists (e.g., U.S. Department of the Treasury's Specially Designated Nationals List, U.S. Commerce Department's Denied Persons/Entity List, etc.). To meet these export requirements, Licensee must submit to the ESRI Training Event Assistant a list of the names of Students that are to attend any training class. Licensee must submit the list of Student names to ESRI at least three (3) business days before the class start date. Any Student that is found on any of the various U.S. Government Denied Persons lists will not be permitted to attend training. • Licensee is responsible for all Student travel arrangements. ESRI assumes no responsibility for losses from nonrefundable travel arrangements resulting from denial of a Student's participation due to U.S. government export regulation requirements, course scheduling changes, or cancellations. ■ Licensee must provide written notice to ESRI's Customer Service of any cancellation, rescheduling, or Student substitution requirements and receive confirmation of these change(s) priorto the class start date. ■ Licensee is responsible to ensure that it adheres to the course, facility, and equipment requirementsfor ESRI training as found at http://traininci.esri.com/gatewav/ index. cfm?fa=tralnina0ptlons. gateway. ■ Students may not use audio and/or video recording equipment within the classroom without prior written approval from ESRI. ARTICLE 4—CANCELLATION AND RESCHEDULING POLICY Licensee may cancel or reschedule Student attendance in training up to three (3) working days before the scheduled class start date. In the event of a cancellation, Licenseewill reimburse ESRI for any reasonable travel and shipping expenses incurred by ESRI. In the event Licensee does not notify ESRI at least three (3) days prior to the scheduled training date, ESRI will deduct the appropriate number of class days from the remaining accounttraining days. If ESRI is unable to conduct the training on the scheduled date, ESRI will notify Licensee at least three (3) business days before the scheduled date. If cancellation of a training event is necessary due to Force Majeure, the affected party is released in full from the three (3) - business -day notification. The affected parry will either reschedule the training or cancel the order without that affected party incurring any liability. Students may transfer from one scheduled ESRI Learning Center class to another up to two (2) times at no additional charge. Subsequent transfers may be assessed an additional nonrefundable transfer fee. Student substitutions, when a Student's place in class is filled by another person from the same organization, are allowed provided that ESRI Customer Service is notified three (3) business days in advance of the class start date. ARTICLE 5 --UNIQUE TERMS FOR THE SMALL ENTERPRISE TRAINING PACKAGE • The training days are available for a period of thirty-six (36) months, commencing on the Effective Date, or when all training days are consumed, whichever is sooner. • Licensee is committed to scheduled training days when ESRI training requests are received and accepted by ESRI. ■ ESRI will invoice for outstanding training expenses where applicable. • Upon the anniversary, unused training days are forfeited. ■ Training days are nontransferable and nonrefundable for any other ESRI products or services. ARTICLE 6—CONFIDENTIAL INFORMATION ESRI or the Licensee may disclose to the other party certain confidential information under this Agreement. The disclosing party shall identify the information as confidential information at the time of disclosure. Each party shall use the confidential information described above only for exchanging information needed to provide the training contemplated by this Agreement. Within fourteen (14) days of completion of the training, each party shall return or destroy and provide written notification of destruction of the confidential information of the other party. ARTICLE 7—RESERVATION OF OWNERSHIP AND GRANT OF LICENSE Except as specifically granted in this Agreement, ESRI and/or its licensors own and retain all right, title, and interest in software, data, documentation, and training materials. E214-3 Page I 1 of 12 05/14/2010 ARTICLE 8—WARRANTY ESRI will provide training in a manner consistent with the technical and professional standards of the industry. 8.1 Disclaimerof Warranties. WITH THE EXCEPTION OF THE LIMITED WARRANTY SET FORTH IN THIS ARTICLE, ESRI DISCLAIMS, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, AND NONINFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE DELIVERABLES ARE ERROR FREE. ARTICLE 9—LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY EXCEPT FOR INDEMNITY ASSOCIATED WITH CLIENT SITE TRAINING, IN NO EVENT SHALL ESRI BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR TRAINING; LOST PROFITS; LOST SALES; BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS COMMITMENTS; LOSS OF ANY GOODWILL; OR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY, EVEN IF ESRI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, SHALL IN NO EVENT EXCEEDTHE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE PORTION OF THE TRAINING UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ARTICLE 10—UCC INAPPLICABILITY Training provided under this Agreement will not be governed by the Uniform Commercial Code (UCC) and will not be deemed "goods" within the definition of the UCC. E214-3 Page 12 of 12 05/14/2010