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

subcontractors to perform RF Field Equipment installation, the systems integration work (if applicable), or project management (if applicable), without requiring Customer’s consent. Amendments. No alteration, amendment, or other modification shall be binding unless in writing and signed by both Customer and by a vice president (or higher) of Sensus. Govemning Law and Dispute Resolution. This Agreement shall be govemed by, construed and enforced in accordance with the laws of the State of Florida. Any and all disputes arising under, out of, or in relation to this Agreement, its negotiation, performance or termination {"Disputes’) shall first be resolved by the Parties attempting mediation in Florida. If the Dispute is not resolved within sixty (60) days of the commencement of the mediation, it shall be liigated in the state or federal courts located in Florida. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES AGREE TO A BENCH TRIAL AND THAT THERE SHALL BE NC JURY IN ANY DISPUTES. Restriction on Discovery. The Parties acknowledge the abundance of documents, data, and other information stored in an electronic manner and the time and costs associated with retrieving relevant electronic data from the Parties during the Discovery portion of a claim. Accordingly, the Parties shall utilize only printed or hard-copy documents, data, and other information in Discovery and shall not use or request electronic or e-Discovery methods for any claim, demand, arbitration or Iitigation subject to this Agreement. Al relevant and unprivileged printed or hard-copy materials shall be subject to Discovery, but neither Party has an obligation to maintain printed or hard-copy files in anticipation of a claim, demand, litigation, or arbitration proceeding. Survival. The provisions of this Agreement that are applicable to circumstances arising after its termination or expiration shall survive such termination or expiration. Severability. In the event any provision of this Agreement is held to be void, unlawful or otherwise unenforceable, that provision will be severed from the remainder of the Agreement and replaced automatically by a provision containing terms as nearly like the void, unlawful, or unenforceable provision as pessible; and the Agreement, as so modified, will continue to be in full force and effect. Four Corners. This written Agreement, including all of its exhibits, and the Spectrum Lease represents the entire understanding between and obligations of the parties and supersedes all prior understandings, agreements, negotiations, and proposals, whether written or oral, formal or informal between the parties regarding the subject matter herein. Any additional writings shall not modify any limitations or remedies provided in the Agreement. There are no other terms or conditions, oral, written, electronic or otherwise regarding the subject matter herein. There are no implied obligations. All obligations are specifically set forth in this Agreement. Further, there are no representations that induced this Agreement that are not included in it. Unless otherwise referenced, the ONLY operative provisions are set forth in writing in this Agreement. Without limiting the generality of the foregoing, no purchase order placed by or on behalf of Customer shall alter any of the terms of this Agreement. The parties agree that such documents are for administrative pusposes only, even if they have terms and conditions printed on them and even if and when they are accepted and/or processed by Sensus. Any goods, software or services delivered or provided in anticipaticn of this Agreement (for e.g., as part of a pilot or because this Agreement has not yet been signed but the parties have begun the deployment) under purchase orders placed prior to the execution of this Agreement are governed by this Agreement upen its execution and it replaces and supersedes any such purchase orders, Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be desmed an original, but all of which together shall consfitute one and the same instrument. Additionally, this Agreement may be executed by facsimile or electronic copies, all of which shall be considered an original for all purposes. 7. Definitions. Asused in this Agreement, the following terms shall have the following meanings: A B. “Affiliate” of a party means any other entity controlling, controlled by, or under common control with such party, where “control’ of an entity means the ownership, directly or indirectly, of 50% or more of either; (i) the shares or other equity in such entity; or {if) the voting rights in such entity, “AMI System” identifies the Sensus FlexNet Advanced Meter infrastructure System comprised of the SmartPoint Modules, RF Field Equipment, Server Hardware, software licenses, FCC licenses, and other equipment provided to Customer hereunder. The AMI System only includes the foregoing, as provided by Sensus. The AMI System does not include goods, equipment, software, licenses or rights provided by a third party or parties to this Agreement. CONFIDENTIAL { Page 3 of 12 mo EO] oz=z = o wxm O s<c SENSUS “Confidential Information” means any and all non-public information of either party, including the terms of this agreement, all technical information about either party's products or services, pricing information, marketing and marketing plans, Customer's End Users' data, AMI System performance, AMI System architecture and design, AMI System software, other business and financial information of either party, and all trade secrets of either party. “End User” means any end user of electricity, water, andfor gas (as applicable) that pays Custemer for the consumption of electricity, water, andfor gas, as applicable. “FlexNet Base Statfon” identifies the Sensus manufactured device consisting of one transceiver, to be located on a tower that receives readings from the SmartPoint Modules (either directly or via an Echo Transcelver) by radio frequency and passes those readings to the RNI by TCP/IP backhaul communication. For clarity, FlexNet Base Stations Include Mefro Base Stations. “Force Majeure’ means an event beyond a party's reasonable control, Including, without limitation, acts of God, hurricane, flood, volcana, tsunami, tornado, storm, tempest, mudslide, vandalism, illegal or unautherized radio frequency interference, strikes, lockouts, or other industrial disturbances, unavailability of component parts of any goods provided hereunder, acts of public enemies, wars, blockades, insurrections, riots, epidemics, earthquakes, fires, restraints or prehibitions by any court, board, department, commission or agency of the United States or any States, any arrests and restraints, civil disturbances and explosion. "Hosted Software" means those items listed as an Application in Exhibit A, “InfOut Costs" means any costs and expenses incurred by Customer In transporting goods between its warehouse and its End User's premises and any costs and expenses incurred by Customer in installing, uninstalling and removing goods. "Intellectual Property’ means patents and patent applications, inventions (whether patentable or not), trademarks, service marks, frade dress, copyrights, trade secrets, know-how, data rights, specifications, drawings, designs, maskwork rights, moral rights, author's rights, and other intellectual property rights, including any derivations and/or derfvative works, as may exist now or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurlsdiction, any registrations or applications thereof, and all goodwill pertinent thereto. "“Ongoing Fee” means the annual or monthly fees, as applicable, to be paid by Customer during the Term of this Agreement, "Pafches’ means patches or other maintenance releases of the Software that correct processing errors and other faults and defects found previous versions of the Software. For clarity, Paiches are not Updates or Upgrades, “Permitted Use” means only for reading and analyzing data from Customer's Field Devices in the Service Territory. The Permitted Use does not include reading third party meters or reading meters outside the Service Termitory, “Refease’ means both Updates and Upgrades. “RF Field Equipment' means, collectively, FlexNet Base Stations, Echo Transcelvers and Remote Transcelvers, 'RNI" identifies the regional network Interfaces consisting of hardware and software used to gather, store, and report data collected by the FlexNet Base Stations from the SmartPoint Modules. The RNI hardware specifications will be provided by Sensus upon wiitten request from Customer, "RNI Software” identifies the Sensus proprietary software used in the RNI and any Patches, Updates, and Upgrades that are provided to Customer pursuant to the terms of this Agreement. “Service Terrifory” identifies the geographic area where Customer provides eleclricity, water, and/or gas (as applicable) services to End Users as of the Effective Date, This area will be described on the propagation study in the parties’ Spectrum Lease filing with the FCC . “Server Hardware” means the RN hardware, "SmartPoint™ Modules" identifies the Sensus transmission devices installed on devices such as meters, distribution automation equipment and demand/response devices located at Customer's End Users' premises that take the readings of the meters and transmit those readings by radio frequency to the relevant FlexNet Base Station, Remote Transcelver or Echo Transceiver. "Software' means all the Sensus proprietary software provided pursuant to this Agreement, and any Paiches, Updates, and Upgrades that are provided to Customer pursuant to the terms of this Agreement. The Software does not include any third party software. “Updates” means releases of the Software that constitute a minor improvement in functionality. "Upgrades’ means releases of the Software which constitute a significant improvement in functionality or architecture of the Software, “WAN Backhaul” means the communication link between FlexNet Base Stations and Remote Transceivers and RNI. CONFIDENTIAL | Page 4 of 12 SENSUS Exhibit A Software Software as a Service 1. Description of Services This exhibit contains the details of the Software as a Service that Sensus shall provide to Customer if both; (i) pricing for the application of Software as a Service has been provided to the Customer; and (ii) the Customer is current in its payments for such application of Software as a Setvice. A. Software as a Service Generally, Software as & Service is 2 managed service in which Sensus will be respensible for the day-to-day monitoring, maintenance, management, and supporting of Customer's software applications. In a Software as a Service solution, Sensus owns all components of the solution (server hardware, storage, network equipment, Sensus software, and all third-party software) required to run and operate the application. These software applications consist of the following (each an “Application™): + Regional Nefwork Interface (RNI) Software + Sensus Analytics o Enhanced Package The managed application systems consist of the hardware, Sensus Software, and other third-party software that is required to operate the software applications. Each Application will have a production, and Disaster Recovery (as described below) environment. Test environments are not provided unless otherwise specifically agreed by Sensus in writing. Sensus will manage the Applications by providing 24 x 7 x 365 monitoring of the availability and performance of the Applications, B. Usage License. Subjectto all the terms and conditions of this Agreement, Sensus hereby gives Customer a license under Sensus’ intellectual property rights to use the Sensus Applications for the Permitted Use for so