Okaloosa County BOCC — January 17, 2017 — Software as a Service Agreement — reading text

i e R SENSUS Software as a Service Agreement between Okaloosa County (“Customer”) and Sensus USA Inc. (“Sensus”) IN WITNESS WHEREOF, the parties have caused this Software as a Service Agreement (“Agreement”) to be executed by their duly authorized representatives as of the day and year written below. The date of the last party to sign is the “Effective Date.” This Agreement shall commence on the Effective Date and continue for/until: 5 Years (“Initial Term”). At the end of the Initial Term, this Agreement shall automatically renew for an additional term of 5 years (“Renewal Term”), unless either party provides written notice of its intent not to renew at least sixty (60) days prior to the end of the Initial Term. The “Term” shall refer to both the Initial Term and the Renewal Term. Sensus USFA)J"IC. J\ Customer: Okaloosa County By: Jenn e By: Name: 1 F M \.‘\'& RRLGE R Name: Carolyn N. Ketchel Title: VIO SM\QS VA \WauteC Title: Chairman, Board of County Commissioners Date: ‘3\/&)/ /6 Date: Contents of this Agreement: SaaS Agreement Exhibit A Software Exhibit B Technical Support Exhibit C Payment Terms CONFIDENTIAL | Page 1 of 12 SEMNSUS SaaS Agreement Existing Agreement. Sensus and Customer separately entered into contract C01-0614-WS on August 26, 2013 which provides for Customer's purchase of water meters and other associated products (‘lnitial Purchasing Contract’). The Initial Contract was subsequently amended on July 21, 2016 to extend the term and amend pricing (*Amended Purchasing Confract’). Togsther, the Initial Purchasing Contract and the Amended Purchasing Contract are referred to in this Agreement as the “Existing Purchase Contract’). The pricing of the Existing Purchase Contract shall apply to the services provided by Sensus in this Agreement. In the event of any direct conflicts befween the Existing Purchase Contract and this Agreement, this Agreement shall control. Software. A, Software as a Service {SaaS). Sensus shall provide Customer with Software as a Service, as defined in Exhibit A, only so long as Customer is current in its payments for such services. B. UCITA. To the maximum exient permitted by law, the Parties agree that the Uniform Computer Information Transaction Act as enacted by any state shall not apply, in whole or in part, to this Agreement. Equipment, A, Purchase of Equipment. Customer is not required to purchase any equipment under this Agreement. In the event Customer elects to purchase equipment, Customer shall purchase all Field Devices, RF Field Equipment, and other goods (collectively, “Equipment”} in accordance with the process described in the Existing Purchase Contract. If Customer elects to purchase any equipment or services directly from Sensus, or if Customer pays any fees or other costs to Sensus, then Sensus' Terms of Sale shall apply. The "Terms of Sale” are available at: hito:/www sensus.com/TC, or 1-800-METER-IT. B. THERE ARE NO WARRANTIES IN THIS AGREEMENT, EXPRESS OR IMPLIED. SENSUS EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY MATTER IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND TITLE. Services. A, IT Systems Integration Services. Integration of the Software into Customer's new or existing intemnal IT systems Is not included in this Agreement. Any integration work shall be subject to a separate agreement which describes the scope and pricing for such work. B. Technical Support. Sensus shall provide Customer the technical support set forth in Exhibit B. C. Project Management. Project management of the AMI System is not included in this Agreement. Any project management shall be subject to a separate agresment which describes the scope and pricing for such work. D. Training. Training on the use of the AMI System is not included in this Agreement. Any training shall be subject to a separate agreement which describes the scope and pricing for such work. Spectrum A, Spectrum Lease. The parties previously entered into a spectrum manager lease on 3/10/2016 (the “Spectrum Lease™), which is hereby specifically Incorporated by reference. General Terms and Conditions. A, Payment. All pricing is subject to the Existing Purchase Agreement. Customer shall pay Sensus for the services provided herein in accordance with Exhibit c B. Limitation of Liability. 1. Sensus’ aggregate liahility in any and all causes of action arising under, out of or in reation to this Agreement, its negotiation, performance, breach or termination {collectively “Causes of Action”} shall not exceed the greater of; (a) the total amount paid by Customer directly to Sensus under this Agreement; or (b) ten thousand US dollars (USD 10,000.00). This is so whether the Causes of Action are in tort, including, without limitation, negligence or strict liability, in contract, under statute or otherwise. As separate and independent limitations on liability, Sensus' liability shall be limited to direct damages. Sensus shall not be liable for; (i} any indirect, incidental, special or consequential damages; nor (i) any revenue or profits lost by Customer or its Affiliates from any End User(s), irrespective whether such lost revenue or profits is categorized as direct damages or otherwise; nor (jii) any InfOut Costs; nor (iv) manual meter read costs and expenses; nor (v) claims made by a third party, nor (vi) damages arising from maincase or bottom plate breakage caused by freezing temperatures, water hammer conditions, or excessive water pressure. The limitations on liability set forth in this Agreement are fundamental inducements to Sensus entering into this Agreement. They apply unconditionally and in all respects. They are to be interpreted broadly so as to give Sensus the maximum protection permitted under law, ii. -~ To the maximum extent permitted by law, no Cause of Action may be instituted by Customer against Sensus more than TWELVE (12) MONTHS after the Cause of Action first arose. In the calculation of any damages in any Cause of Acion, no damages incurred more than TWELVE (12) MONTHS prior to the filing of the Cause of Action shall be recoverable. C. Termination. Either party may terminate this Agreement earlier if the other party commits a material breach of this Agreement and such material breach is not cured within forty-five (45) days of written notice by the other party. Upon any expiration or termination of this Agreement, Sensus’ and Customer’s obligations hereunder shall cease and the software as a service and Spectrum Lease shall immediately cease. D. Force Majeure. if either party becomes unable, either wholly or in part, by an event of Force Majeure, to fulfill its obligations under this Agreement, the obligations affected by the event of Force Majeure will be suspended during the continuance of that inability. The party affected by the force majeure will take reasonable steps to mitigate the Force Majeure. E. Intellectual Property. No Intellectual Property is assigned to Customer hereunder. Sensus shall own or continue to own all Intellectual Property used, created, and/or derived in the course of performing this Agreement. To the extent, if any, that any ownership interest in and to such Intellectual Property does not automatically vest in Sensus by virtue of this Agreement or otherwise, and instead vests in Customer, Customer agrees to grant and assign and hereby does grant and assign to Sensus all right, titls, and interest that Custemer may have in and to such Intellectual Property. Customer agrees not to reverse engineer any Equipment purchased or provided hereunder. F. Confidentiality. The parties specifically acknowledge the public records laws applicable to Customer and hereby incorporate by reference the section of the Amended Purchasing Contract entitled “Public Records Laws.” To the extent Confidential Information exchanged between the parties does not fall under the scope of the Public Records Laws, both parties shafl (and shall cause their employees and contractors to) keep all Confidential Information strictly confidential and shall not disclose it to any third party, except o the extent reasonably required to perform and enforce this Agreement or as required under applicable law, court order or regulation. The Confidential Information may be transmitted orally, in wiiting, electronically or otherwise observed by either party. Notwithstanding the foregoing, “Confidential Information” shall not include; (i} any information that is in the public domain other than due to Reciplent's breach of this Agreement; (ii) any information in the possession of the Recipient without restriction prior to disclosure by the Discloser; or (iii) any information CONFIDENTIAL | Page 2 of 12 G SEMNSUS independently developed by the Recipient without reliance on the information disclosed hereunder by the Discloser. “Discloser” means either party that discleses Confidential Information, and “Recipient” means sither party that receives it. i. IF SENSUS HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO SENSUS' DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT OKALOOSA COUNTY RISK MANAGEMENT DEPARTMENT 5479 OLD BETHEL ROAD CRESTVIEW, FL 32536 PHONE: (850) 689-5977 riskinfo@co.okaloosa.fl.us. Compliance with Laws. Customer shall comply with all applicable country, federal, state, and local laws and regulations, as set forth at the time of acceptance and as may be amended, changed, or supplemented. Customer shall not take any action, or permit the taking of any action by a third party, which may render Sensus liable for a violation of applicable laws. i. Export Control Laws. Customer shall; (i) comply with all applicable U.S. and local laws and regulations governing the use, export, import, re-export, and transfer of products, technology, and services; and {if) obtain all required authorizations, permits, and licenses. Customer shall immediately nofify Sensus, and Immediately cease all activities with regards to the applicable transaction, if the Customer knows or has a reasonable suspicion that the equipment, software, or services provided hereunder may be directed to countries in violation of any expert control laws. By ordering equipment, software or services, Customer cerfifies that it is not on any U.S. govemment export exclusion list, it. Anti-Corruption Laws. Customer shall comply with the United States Foreign Corrupt Practices Act (FCPA), 15 U.S.C. §§ 78dd-1, et seq.; laws and regulations implementing the OECD's Conventicn on Combating Bribery of Foreign Public Officials in International Business Transactions; the U.N. Convention Against Corruption; the Inter-American Convention Against Corruption; and any other applicable laws and regulations relating to ant- corruption in the Customer’s county or any country where performance of this Agreement, or delivery or use of equipment, software or services will 0CCur. Non-Waiver of Rights. A waiver by either party of any breach of this Agreement or the failure or delay of either party to enforce any of the articles or other provisions of this Agreement will not in any way affect, limit or waive that party's right to enforce and compel strict compliance with the same or other articles or provisions. Assignment and Sub-contracting. Either party may assign, transfer or delegate this Agreement without requiring the other party’s consent; (i) to an Affiliate; (ii) as part of & merger; or jii) to a purchaser of all or substantially all of its assets. Apart from the foregoing, neither party may assign, transfer or delegate this Agreement without the prior written consent of the other, which consent shall not be unreascnably withheld. Furthermore, Customer acknowledges Sensus may use