HomeMy WebLinkAboutresolution.council.032-19 RESOLUTION # 32
(Series of 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,-
COLORADO,
SPEN,COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND LANDIS + GYR TECHNOLOGY, INC. AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF
ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract for the
provision of a Gridstream RF Mesh IP solution for the water and electric utilities
between the City of Aspen and Landis + Gyr Technology, Inc., a true and accurate
copy of which is attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
for the provision of a Gridstream RF Mesh IP solution for the water and electric
utilities between the City of Aspen and Landis + Gyr Technology, Inc., a copy of
which is annexed hereto and incorporated herein and does hereby authorize the
City Manager to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 11 to day of March 2019.
C
Steven Skad on, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held, March 11, 2019.
Linda Manning, City Clerk
MASTER PURCHASE, LICENSE AND SERVICES AGREEMENT
THIS MASTER PURCHASE, LICENSE AND SERVICES AGREEMENT is effective as of the last
signature date below ("Effective Date") and is between City of Aspen, a municipal electric utility,
("Customer") with principal offices located at 130 S Galena St, Aspen, CO 81611, and Landis+Gyr
Technology, Inc., a Delaware corporation ("Landis+Gyr") with principal place of business at 30000 Mill
Creek Avenue, Suite 100, Alpharetta, GA 30022.
WHEREAS, Customer desires to engage Landis+Gyr to perform Services and to provide Products to
Customer for the provision of a Gridstream RF Mesh IP solution as referenced in this Agreement for
Customer's deployment and implementation of the Advanced Metering Infrastructure(AMI)system.
WHEREAS, Landis+Gyr will supply to Customer the Products and perform the Services as set forth herein
and as described in the attached Exhibit(s)to this Agreement.
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound,the parties agree as follows:
1. Definitions
The terms listed below are defined as follows:
1.1 "Agreement"means this Master Purchase, License and Services Agreement, including all exhibits
and Statements of Work, which is by and between Customer and Landis+Gyr. In the event there
are any conflicting provisions or requirements among the Agreement documents,the provision and
requirements of the Agreement document shall be enforced in the following order of descending
priority: (i) any amendment to this Agreement; (ii) the body of this Agreement; (iii) Exhibit B
(Attachments) and (iv) any other document included as an Agreement document. Exhibit B
attached hereto includes references to the Request for Proposal and related responses by
Landis+Gyr.
1.2 "Network Gateway" means the Landis+Gyr two-way radio base station that transmits data
between the Meters, Routers and the data center.
1.3 "Customer Data"means(i)any and all information related to the Customer's customers,end user
or consumers relating to electricity, natural gas and/or water consumption, load profile, billing
history, or credit history that is or has been obtained or compiled by Customer in connection with
supplying such services to that customer or group of customers ("Personal Information")
(regardless of the media in which it is contained) that may be disclosed to or accessed by
Landis+Gyr at any time or to the Field Tools by Customer or its employees, agents, consultants,
contractors, suppliers or customers in connection with Landis+Gyr's performance of the Services;
(ii) any and all Personal Information created, obtained, used or accessed by Landis+Gyr (or the
Field Tools) in its performance of the Services,or derived from such information or materials;and
(iii)all data and information of Customer, its employees or customers.
1.4 "Defect" or "Defective" means: a material failure of Equipment or Software, as applicable, to
comply with its warranty during the applicable warranty period.
1.5 "Deployed"means Equipment,as applicable,that has been commissioned in the field and properly
installed by the installation contractor, or Customer, and signed off by Customer as ready for use.
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1.6 "Documentation" means any and all manuals, instructions, specifications and other documents
and materials that Landis+Gyr provides or makes available to Customer in any medium and which
describe the functionality,components,features or requirements of the Software,including any one
or more of installation, configuration, integration, operation, use, support or maintenance thereof.
1.7 "Endpoint" means a sensory-type device,e.g., electric meter, water meter, gas meter, DA device,
load control switch,etc.,that is equipped with an AMI communication module.
1.8 "Equipment" means Network Equipment, Endpoints, and/or hardware that Customer purchases
from Landis+Gyr.
1.9 "Event of Bankruptcy" means any of the following events or circumstances with respect to a
party:
(a) That party makes a general assignment for the benefit of creditors;
(b) That party institutes proceedings to be adjudicated a voluntary bankrupt, or consent
to the filing of a petition of bankruptcy against it;
(c) That party is adjudicated by a court of competent jurisdiction as being bankrupt or
insolvent;
(d) That party seeks reorganization under any bankruptcy act,or consent to the filing of a
petition seeking such reorganization; or
(e) That party has a decree entered against it by a court of competent jurisdiction
appointing a receiver, liquidator,trustee,or assignee in bankruptcy or in insolvency
covering all or substantially all of such party's property or providing for the
liquidation of such party's property or business affairs.
1.10 "Field Tools" means the Landis+Gyr proprietary field tools provided by Landis+Gyr hereunder,
or which are obtained by Customer under this Agreement including Tech Studio. RadioShop,
Endpoint Test Manager and/or Tech Studio for RF or their successors or replacements.
1.11 "Firmware"means software embedded in and provided with the Equipment.
1.12 "Load Control Equipment" means hardware that Customer purchases from Landis+Gyr
hereunder, or which is obtained by Customer under this Agreement in connection with the Load
Control Solution, including, but not limited to"Load Control Switches".
1.13 "Network Equipment"means the Network Gateways,Routers,and radios that are or will be under
this Master Agreement physically deployed in the Customer service territory. The term does not
include the system backhaul, the network operations center, any system equipment that is not
located in the Customer service territory, Meters, or any aspect or component of the system
components that is not used by Customer.
1.14 "Meter"means a device that measures the supply of electricity,gas,or water provided by Customer
to Customer's consumer.
1.15 "Products" means Equipment, Firmware, Software, and/or any other items purchased or licensed
from Landis+Gyr under this Agreement.
1.16 "Purchase Order"means a Customer order,including,without limitation,a purchase order offered
by Customer, to purchase Products or Services from Landis+Gyr that Landis+Gyr accepts. Each
Purchase Order will be deemed to include the terms and conditions of this Agreement even if not
referenced in a Purchase Order.
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1.17 "Router" means Landis+Gyr-furnished Network Equipment that provides intermediate
communication and data processing between Endpoints and Network Gateways. Routers may also
coin mtin icate with other Routers.
1.18 "Services"means project management services,training,project delivery services,commissioning
services, and/or other services described in Exhibit A.
1.19 "Software" means computer application and programs, including Field Tools, Load Control
Software, in any form that Customer licenses from Landis+Gyr, referenced in Exhibit A.
1.20 "System" means Equipment, Firmware, Field Tools and Software purchased hereunder and used
by the Customer to monitor and manage its consumer's usage of Customer offerings.
1.21 "Third Party Products" means, if any, goods and software that Customer purchases or sub-
licenses from Landis+Gyr that are not manufactured or provided by Landis+Gyr that display the
logo or copyright of another manufacturer, or that are not proprietary to Landis+Gyr.
2. Orders; Cancellations and Modifications
2.1 Equipment Forecasts. Within thirty(30)days after the Effective Date of this Agreement,Customer
shall supply to Landis+Gyr a written forecast of total anticipated Landis+Gyr Equipment needs by
month. Any changes to the Equipment forecast should also be furnished to Landis+Gyr. Failure
to provide an accurate forecast, within reason, may negate the stated Landis+Gyr equipment lead
times and may adversely impact delivery of product to Customer.
2.2 Written Orders. Customer may issue Purchase Orders to Landis+Gyr by mail, facsimile
communication or electronic mail. Landis+Gyr may accept Customer's Purchase Order by signing
it, acknowledging it using facsimile or electronic mail, or by delivering the Products which
Customer ordered.Customer's Purchase Order will be accepted solely for purposes of establishing
the items and quantities ordered and the desired shipment dates and shipment method. Customer's
desired shipment dates shall take into account Landis+Gyr's current lead times at the time of the
Purchase Order. Lead times will be provided to Customer by a Landis+Gyr representative and are
defined as the cycle time from acknowledgement of Order to fulfillment of Order, assuming the
Equipment was initially forecasted in accordance with Section 2.1. It is acknowledged by the
parties that all instrument and documents issued or delivered by either party pursuant to this
Agreement, including all Purchase Orders, order acceptance, order acknowledgements, invoices
and other instruments ("Order Documents") shall incorporate the terms and conditions of this
Agreement,irrespective of whether any such Order Document expressly references this Agreement,
and shall be subject to the terms and conditions contained in this Agreement. Any terms and
conditions contained in an Order Document now or hereafter delivered by a party pursuant to this
Agreement other than quantities, service description and other required details and shipping
instructions,will not apply and each Party hereby waives and rejects all such terms and conditions.
2.3 Cancellation and Modifications. Customer may, without penalty, cancel or reduce an Equipment
Order on written notice to Landis+Gyr no later than sixteen (16)weeks prior to scheduled delivery
of the Equipment Order. Customer may not cancel or modify an Equipment Order within sixteen
(16) weeks prior to delivery. Notwithstanding the foregoing, cancellation charges do not apply to
Software or Services Orders.
2.4 Equipment Intellectual Property. Landis+Gyr retains ownership of all intellectual property rights
in the Equipment. Customer agrees that Customer shall not,and that Customer shall not allow any
third party, to attempt to reverse engineer, de-compile, or disassemble the Equipment or the
Firmware or otherwise discover the trade secrets in the Firmware for any reason.
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3. Shipment
3.1 Shipments. Landis+Gyr will ship or deliver Equipment to Customer's warehouse or other location
designed by Customer. All Equipment will be shipped to Customer DAP (Delivery At Place) in
frill truckload shipments in accordance with INCOTERMS 2010; additional charges may apply if
actual shipment is less than a truckload to the extent applicable. Customer agrees to inspect
Equipment within one (1) week of receipt and to promptly notify Landis+Gyr of any defects.
Customer will be deemed to have accepted the Equipment unless Customer notifies Landis+Gyr
within one week after receipt of the Equipment that the Equipment is rejected. The acceptance of
any Equipment by Customer shall not preclude the subsequent removal thereof if such Equipment
shall be found to be defective after installation; in such event,the Agreement's warranty terms shall
apply.
4. Prices and Taxes
4.1 Prices. Customer's Purchase Order will state Product prices and,if the ordered Product is a Product
described on Exhibit A hereto, if any, the Purchase Order will state the applicable price set forth
thereon. If the Purchase Order does not state a Product price or is for a Product not set forth on
Exhibit A,the price will be Landis+Gyr's then-current price. Landis+Gyr may increase Customer's
price for items ordered by Customer but not included in Exhibit A if it increases its price after it
accepts the Purchase Order, and the Purchase Order specifies delivery more than one hundred
twenty(120)days after the price increase becomes effective. Landis+Gyr shall notify Customer of
the price increase, and Customer shall have the option of cancelling or otherwise modifying its
order, without penalty. Also, price increases for Services or Software licensed for a periodic fee
will apply to subsequent billing periods. The above notwithstanding,set forth in Exhibit A are unit
prices for Products contemplated in the event Customer expands its system.
4.2 Price Adjustment for Pricing in Exhibit A. Pricing by Landis+Gyr set forth in Exhibit A will remain
firm for two (2) years from the Effective Date. Following year two (2), pricing set forth in the
pricing table in Exhibit A shall be subject to an annual increase equal to the percentage annual
adjustment in the CPI. The CPI will be obtained from U.S. Bureau of Labor Statistics
(www.bls.gov/cpi)and is designated as of the June-to-June twelve-month percentage change to the
Consumer Price Index—Urban Wage Earners and Clerical Workers,Not seasonally adjusted.
4.3 Taxes and Other Charges. Unless otherwise stated, Product and Services prices include shipment
but does not include installation charges,charges associated with preparing the Customer site; and
all taxes that relate to Customer's acquisition or use of Products and Services, including sales, use,
VAT and property(ad valorem)taxes,other governmental charges and taxes,and assessments after
audit. Customer agrees to pay those charges and taxes,except for taxes based on Landis+Gyr's net
income. If Customer qualifies for tax exemptions, Customer must provide Landis+Gyr with
appropriate exemption documentation. Without limiting the foregoing, Customer shall have the
right to receive any Software or Documentation to be provided hereunder solely in electronic form.
5. Invoice and Payment
5.1 Invoice and Payment. Landis+Gyr will issue invoices to Customer for all amounts owed to
Landis+Gyr hereunder in accordance with the Agreement. Invoices will be issued (i) for
Equipment, upon shipment of the Equipment,(ii) for Services, 50%at contract execution and 50%
at completion of services; and (iii) for Software license fees, in advance of delivery. Payment is
due within thirty (30) days of the invoice date. Late payments will be subject to interest from the
due date at the lesser of one percent(1%)per month or the maximum rate allowed by law.
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6. Software
6.1 Firmware License. The Firmware is licensed to Customer, not sold. Customer is granted a
perpetual, non-transferable, non-exclusive license to use the Firmware solely in connection with
Customer's use of the Equipment for use solely with Gridstream communication network.
Customer understands and agrees that it is not permitted to distribute the Firmware in any form,or
to use the Firmware except as it is embedded in the Equipment.
6.2 License to Software. Landis+Gyr hereby grants to Customer a non-exclusive, non-sublicensable,
non-transferable, limited license to install, execute and otherwise use the Software in object code
form only in the Customer service territory on the terms of this license. Landis+Gyr hereby licenses
the use of Software solely for use in conjunction with the System. Customer agrees that Customer
shall not, and shall not allow any third party to (i) attempt to reverse engineer, de-compile, or
disassemble the Software or otherwise discover the trade secrets in the Software for any reason,(ii)
make alterations to, or modifications of the Software, in whole or part, or (iii) combine the
Software,or any part of it with,or incorporate it in,any other programs without express permission
from Landis+Gyr. Customer agrees not to copy Software without express written authorization
from Landis+Gyr, except that Customer may copy the Software as required for backup, archival,
testing,training and/or other similar purposes.Customer must reproduce and include the copyright
notices on any such copies. Customer's employees, consultants and contractors (if any) shall be
deemed authorized users of the Software provided that each such employee, consultant and/or
contractor has agreed to comply with the terms hereof,and further provided that Customer remains
liable for any breach of the terms of the license by such employee(s),consultant(s)or contractor(s).
6.3 Intellectual Property Rights. All proprietary and intellectual property rights in and to the Firmware
and Software provided hereunder are owned by Landis+Gyr (or its third party licensors) and
Landis+Gyr (and/or its third party licensors) retains title to the original Firmware and Software
provided to Customer and any copies made from it.
6.4 Software Support and Maintenance Support. Upon payment of the applicable fees, Landis+Gyr
will provide the Software support and maintenance services set forth in the separate Software
Support and Maintenance Agreement(the"Support Agreement").
6.5 System Security. Customer acknowledges that Software may be accessible from the Internet if
configured to do so by Customer.Customer is responsible for establishing system security that will
allow only authorized users to access the Software.
6.6 Customer Responsibilities relating to Software. Except to the extent that Customer purchases
Support and/or Maintenance services, Customer is responsible for, including but not limited to: (i)
performing all system administration activities, reports and APIs utilizing the functionality built
into the Software(if licensed)and loading it into Customer's systems,(ii)performing any exception
processing that is associated with endpoints that do not have billing data available for a particular
billing cycle window; (iii) purchasing, installing and physically maintaining all software System
network communications infi-astructure; (iv) purchasing, installing, configuring and maintaining
all IT hardware needed to operate Software(if licensed)and related applications,(v)administering
all Software logins and passwords for its personnel; (vi) handling all support for its own end-use
consumers, including, without limitation, any matters relating to end-use consumer billing and
utility usage; (vii) performing database administration such that database tables are
archived/truncated to store no more than 90 days of data on-line at all times, (viii) installing and
maintaining all Third Party Products and third party services,(ix)granting secure remote access to
Software to authorized Landis+Gyr personnel if Customer hosts the Software, (x) allowing
Landis+-Gyr to run a read-only script on Customer's Software to collect key performance metrics
to help monitor and troubleshoot issues, (xi) providing help desk support to Customer's own
employees as well as assessing skill deficiencies and readdressing training with Customer's own
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employees, (xii) reporting incidents to Landis+Gyr promptly upon Customer being aware of such
incidents, (xiii)assigning appropriate priority to incidents, action items, and service requests, and
(xiv) notifying Landis+Gyr prior to any scheduled downtime (performed by Customer) on any
Customer systems that could impact services provided by Landis+Gyr.
7. Services
7.1 Services. Landis+Gyr will provide the Services as set forth in Exhibit A or in a separate Statement
of Work. Exhibit A sets forth the description of the Services,pricing,duration and any other terms
specific to the Services described therein.To the extent Customer purchases software maintenance
support, Landis+Gyr will provide the Maintenance Services set forth in the separate Maintenance
Agreement. To the extent Customer purchases Software support, Landis+Gyr will provide the
Support Services set forth in the separate Support Agreement.
8. Limited Warranties
8.1 Equipment Limited Warranty. Landis+Gyr represents and warrants that the Equipment, including
Firmware will, during its applicable warranty period, (a) be new, (b) conform in all material
respects with its specifications,(c)be free from all liens,claims and encumbrances and(d)not fail
when Deployed in the field as a result of a material Defect, provided that such Equipment is
returned based upon the Return Materials Authorization (RMA) process. Units returned under
warranty via an RMA to the designated Landis+Gyr facility will be repaired or replaced by
Landis+Gyr and then returned to Customer as set forth in Section 8.2 below. The warranty period
shall be calculated from date of shipment as follows: (i)for Tech Studio Communication Adapter,
six(6)months,(ii)for RF Thermostats, 12 months and(iii)for all other Equipment, 18 months.
8.2 RMA Process.
8.2.1 Within ninety(90)days of first becoming aware of such breach of warranty,Customer
shall contact Landis+Gyr's customer support and request a return materials
authorization form ("RMA"). After an RMA is issued, Landis+Gyr will provide
Customer with shipping instructions, via email, for the warranted Equipment.
Customer will remove and ship to Landis+Gyr, at Customer's expense, any such
Defective Equipment. Landis+Gyr shall repair or replace, at Landis+Gyr's option and
expense, (and as Customer's sole and exclusive remedy for breach of any equipment
warranty)the Defective Equipment within ninety(90)days of receipt of such returned
Equipment. Landis+Gyr shall ship the repaired or replaced warranted Equipment back
to Customer,at Landis+Gyr's expense.Customer will reinstall the repaired or replaced
warranted Equipment,at Customer's expense.
8.2.2 For Equipment that is found to be not under warranty, Landis+Gyr will at Customer's
direction, (i) attempt repairs, upon Customer's written request, based on Landis+Gyr
current prevailing rates or(ii)ship the non-warranted Equipment back to the Customer,
at Customer's expense, or(iii)dispose of the Equipment.
8.2.3 Any repaired or replaced Equipment shall be warranted as set forth in this Section for
a period equal to the greater of(i)the balance of the applicable warranty period relating
to such Equipment or(ii)six(6)months from the shipment date to Customer.
8.2.4 If more than three percent (3%) of Meters returned by Customer for the prior twelve
(12)month period have no defect("Non-Defective Equipment"),then Customer will
pay twenty-five dollars($25.00)per Meter(subject to a CPI increase)above that three
percent(3%) threshold to cover Landis+Gyr's costs of handling and testing the Non-
Defective Equipment.
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8.2.5 ALL CLAIMS FOR BREACH OF WARRANTY MUST BE RECEIVED BY
LANDIS+GYR NO LATER THAN THIRTY (30) DAYS AFTER THE
EXPIRATION OF THE WARRANTY PERIOD.
8.3 Software Limited Warrak and Software Remedy. Landis+Gyr wan-ants that all Software will
materially comply with its specifications, Documentation and functional requirements for a period
of thirty (30) days from delivery. As sole remedy for Defective Software, Landis+Gyr will use
commercially reasonable efforts to remedy the performance associated with the Software within
forty-five (45) days after written notice from Customer, unless such notice period is otherwise
mutually extended. The limited warranties set forth in this Section 8.3 apply only if Customer: (a)
notifies Landis+Gyr in writing of the warranty breach before the expiration of the Software
Warranty Period; (b) has promptly installed all maintenance releases to the Software that
Landis+Gyr previously made available to Customer at no cost;and(c)as of the date of notification,
is in compliance with all terms and conditions of this Agreement (including the payment of all
license fees then due and owing).
8.4 Services Warranty and Services Remedy. Landis+Gyr warrants that it will provide Services using
personnel of required skill, experience and qualifications and in a professional and workmanlike
manner in accordance with the prevailing standards of its industry standards for similar services
and shall devote adequate resources to meet its obligations under this Agreement. The Services
warranty period shall be ninety (90) days after performing a service except in the cases of
installation services when applicable which shall be twelve (12) months from the date of
installation. In the event of a breach of this warranty, Landis+Gyr shall re-perform the Services in
a manner consistent with this warranty and cure such breach within thirty (30) days after written
notice.
8.5 Warranty Limitations and Exclusions. Landis+Gyr's warranty obligations with respect to the
Equipment and Software comprising the System do not apply to the extent a failure or warranty
non-conformity is caused by: Customer's or a third party's infrastructure or data;Customer's or a
third party's misuse of the equipment or software comprising the System; installation by Customer
or a third party not in compliance with training or manuals provided by Landis+Gyr; operation,
maintenance or use by Customer or third parties not in compliance with applicable training,
manuals or specifications provided by Landis+Gyr; Customer's or a third party's neglect,
modification, accident, vandalism or other intentional damage; exposure to adverse conditions
exceeding performance levels required by applicable specifications; or any other limitation or
exclusion described herein; data provided by Customer.
8.6 DISCLAIMER. OTHER THAN THE EXPRESS WARRANTIES SET FORTH HEREIN,
LANDIS+GYR MAKES NO REPRESENTATIONS OR IMPLIED WARRANTIES TO
CUSTOMER WITH RESPECT TO ANY EQUIPMENT, NETWORK EQUIPMENT, FIELD
TOOLS, SOFTWARE, FIRMWARE AND/OR SERVICES PROVIDED UNDER THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT OR
WARRANTIES THAT MAY BE IMPLIED BY TRADE USAGE OR CUSTOM.
8.7 Third Party Products. The warranties provided by Landis+Gyr do not extend to third party
products that are manufactured by a third party. For avoidance of doubt, Landis+Gyr makes no
representations or warranties with respect to any third party product. Landis+Gyr will use
commercially reasonable efforts to assign to Customer the warranties provided by such third party.
8.8 Exclusive Remedies. Each party's rights and remedies set forth in this Section are exclusive and in
lieu of all other rights and remedies with respect to breaches of warranties.
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9. General Indemnity; Infringement Indemnity
9.1 General Indemnity. To the extent provided by law, each party (the "Indemnifying Party") will
indemnify and defend the other party and its officers, directors, shareholders, agents, employees,
and representatives(collectively,the"Indemnified Party")from all third party claims,and related
liabilities, fines, interest, costs, expenses and damages (including reasonable attorneys' fees)
incurred by the Indemnified Party (collectively, the "Indemnified Losses"), for any property
damage, injury, death, loss or destruction of any kind to persons or property, to the extent the
damage, injury, death, loss or destruction arises out of or is related to the gross negligence, willful
misconduct or misrepresentation on the part of the Indemnifying Party or any of its servants,
representatives, agents,employees or contractors.
9.2 Infrinizement Indemnity by Landis+Gy . Landis+Gyr agrees to indemnify and defend Customer
and its officers, directors, shareholders, agents, employees, and representatives from and against
any Indemnified Losses resulting from a third party claim alleging that any Products or any
resulting use of the Products constitutes an infringement of any United States patent or copyright
or misappropriation of any trademark or trade secret, or constitutes a breach of any intellectual
property right of any third party(an"Infringement Claim").
9.3 Remedies for an Infringement Claim. If the sale or use of any of the Products is enjoined in
connection with any such Infringement Claim, Landis+Gyr agrees to,at its option,without cost or
expense to Customer:
(a) procure for Customer and its end users the right to use such Products and Services at no
cost to Customer and its end users;
(b) replace such Products with equivalent non-infringing products that perform the same or
materially same function as the Products being replaced; or
(c) modify such Products so they become non-infringing provided that such modification does
not render such Products unacceptable to Customer.
Notwithstanding the foregoing, Landis+Gyr will have no liability pursuant to this Section or
otherwise for any Infringement Claim to the extent such a claim is caused by (i) the misuse or
unapproved modification of the Products or Services by or at the direction of Customer (ii) the
failure of Customer to use corrections or enhancements made available to.Customer at no cost to
Customer,where such corrections or enhancements would have remedied such Infringement Claim
or (iii) use of the Products in combination with other equipment or software not provided by
Landis+Gyr but only to the extent such claim is attributable to the combination or other equipment
or software and if such claim would have been avoided but for such combined use. Customer will
consult with Landis+Gyr, as the subject matter expert in this space, before making any unilateral
change(s)to the operating environment(such as Microsoft). If Landis+Gyr advises Customer that
making the proposed change(s) would likely lead to an Infringement Claim and Customer moves
forward with those changes despite Landis+Gyr's advisement, then Landis+Gyr will have no
liability pursuant to this Section or otherwise for any resulting Infringement Claim. This Section
9.3 sets forth the entire liability of Landis+Gyr with respect to an Infringement Claim.
9.4 Indemnification Procedures. The party seeking indemnification will promptly notify the
Indemnifying Party in writing of any Claims for which such party seeks indemnification pursuant
to this Section 9 and cooperate with the Indemnifying Party at the Indemnifying Party's sole cost
and expense.The Indemnifying Party will immediately take control of the defense and investigation
of such Claim and will employ counsel reasonably acceptable to the other party to handle and
defend the same, at the Indemnifying Party's sole cost and expense. The Indemnifying Party will
not settle any Claim on any terms or in any manner that adversely affects the rights of the other
party or any Indemnitee without the other party's prior written consent, which will not be
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unreasonably withheld or delayed. The other party and any Indemnitee may participate in and
observe the proceedings at its own cost and expense with counsel of its own choosing. A party's
failure to perform any obligations under this Section 9.4 will not relieve the Indemnifying Party of
its obligations herein except to the extent that the Indemnifying Party can demonstrate that it has
been prejudiced as a result of such failure.
9.5 Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this
Agreement, the Indemnifying Party is not obligated to indemnify or defend Indemnified Party
against any claim (whether direct or indirect) if such claim or corresponding Indemnified Losses
arise out of or result from Indemnified Party's:
(a) gross negligence or more culpable act or omission (including recklessness or willful
misconduct); or
(b) use of the Products in any manner that does not materially conform with the usage
guidelines or specifications provided by Landis+Gyr.
10. Term; Termination
10.1 Term. This Agreement shall become effective on the Effective Date and continue in full force and
effect for three (3) years unless sooner terminated in accordance with the provisions hereof.
Thereafter, the term shall renew on a year to year basis unless either party receives written notice
from the other of the other party's intent to terminate the Agreement upon the expiration of the then
current one (1)year term. Such notice shall be delivered no later than sixty (60)days prior to the
expiration of the then current one(1)year term.
10.2 Right to Terminate. Prior to the expiration of the initial three (3) year term, either party may
terminate this Agreement upon sixty(60)days prior written notice to the other party for failure of
such party to fulfill any of its material obligations hereunder. In the event that the breaching party
corrects the breach within the sixty(60)day period,this Agreement shall continue in full force and
effect as it would have had such breach not occurred. Failure to perform due to a force majeure
shall not be considered a substantial or material default under this Agreement. A party hereto may,
at its option,terminate this Agreement upon an Event of Bankruptcy of the other party.
10.3 Effect of Termination. The expiration or termination of this Agreement, for any reason, shall not
release either party from any liability to the other party, including any payment obligation that has
already accrued hereunder. If Customer shall terminate this Agreement other than for reasons of a
default by Landis+Gyr, Customer shall upon such expiration or termination, within 30 days, at
Landis+Gyr's option and at Customer's expense, return to Landis+Gyr or destroy all materials
containing Landis+Gyr's Confidential Information.
10.4 Survival. The provisions of Section I, 6 through 10, and 12 through Section 15 shall survive the
expiration or earlier termination of this Agreement for any reason, provided that with respect to
Section 12, each party's obligations under this Section 10.4, shall survive the expiration or earlier
termination of this Agreement for a period of two (2) years from the date of such expiration or
termination,except for Confidential Information that constitutes a trade secret under any applicable
law, in which case, such obligations shall survive for as long as such Confidential Information
remains a trade secret under such law.
11. Change Management Process
11.1 Change Management. If changes are requested by either party following the Effective Date, the
requesting party shall provide a request to the other party's Project Manager or other designated
staff in writing. The other party will analyze the impact and inform the other party's Project
Manager of any impacts to cost, schedule, and other implications to perform the change. If both
9
parties approve of the written change, accepted Change Requests will be deemed amendments to
this Agreement and are incorporated into this Agreement by reference. Execution of the requested
work cannot begin until both parties have accepted the change order in writing.
12. Governing Lav; Submission to Jurisdiction
12.1 Governing Law; Submission to Jurisdiction.
(a) This Agreement and all related documents,and all matters arising out of or relating to this
Agreement, are governed by, and construed in accordance with, the laws of the State of
Colorado,without regard to Colorado's conflict of laws principles.The Uniform Computer
Information Transactions Act does not have any application to this Agreement.
(b) Any legal suit, action or proceeding arising out of or related to this Agreement or the
licenses granted hereunder will be instituted exclusively in the federal courts of the United
States or the courts of the State of Colorado in each case located in Pitkin County,and each
party irrevocably submits to the exclusive jurisdiction of such courts in any such suit,action
or proceeding. Service of process, summons, notice or other document by mail to such
party's address set forth herein will be effective service of process for any suit, action or
other proceeding brought in any such court.
12.2 Court Actions. Prevailing party shall be entitled to recovery of costs and expenses, including
reasonable attorney's fees, incurred in defending the court case. Landis+Gyr retains the right to
obtain an injunction in court to prevent Customer's misuse of its intellectual properties.
13. Confidentiality
13.1 Confidential Information. From time to time during the Term of this Agreement, either Party (as
the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving
Party") non-public, proprietary, confidential information about its business affairs, products,
services, confidential intellectual property, trade secrets, third party confidential information and
other sensitive or proprietary information in oral, written, electronic or other intangible form
marked or indicated as "Confidential" or "Proprietary" at the time of disclosure (collectively,
"Confidential Information"). Confidential Information, however, shall not include: (a)
Information which is already generally available to the public; (b) Information which hereafter
becomes generally available to the public, except as a result of the direct or indirect action of the
Receiving Party in breach of this Agreement; (c) Information known to the Receiving Party or its
Representatives on a non-confidential basis prior to receipt by the disclosing party;(d)Information
that is independently developed without access to the Disclosing Party's Confidential Information;
and(e)Information disclosed under legal compulsion;provided,however,that prior to a disclosure
pursuant to an order or applicable law,the Receiving Party,to the extent permitted by law,promptly
provides the other party written notice of such proposed disclosure and reasonably cooperates with
the other party in its attempts to limit or prevent such disclosure.The Receiving Party shall use the
Confidential Information solely for the performance of this Agreement and shall not disclose or
permit access to Confidential Information other than to its Affiliates and its or their employees,
officers, directors, attorneys, accountants and financial advisors (including insurers)(collectively,
"Representatives") who: (a) need to know such Confidential Information for the performance of
this Agreement; (b) know of the existence and terms of this Agreement and (c) are bound by
confidentiality obligations no less protective of the Confidential Information than the terms
contained herein.These non-disclosure obligations shall survive the termination of this Agreement
and shall continue for a period of five (5) years thereafter. Information need not be marked
"Confidential" to be considered Confidential Information. "Confidential Information" includes
any Confidential Information disclosed prior to the effective date of this Agreement. Customer
Confidential Information shall also be deemed to include Customer Data regardless of marking or
indication and shall not be subject to the exceptions referenced above.
10
13.2 Safeguarding Confidential Information. The Receiving Party shall safeguard the Confidential
Information from unauthorized use, access or disclosure using at least the degree of care it uses to
protect its most sensitive information and no less than a reasonable degree of care. The Receiving
Party shall promptly notify Disclosing Party of any unauthorized use or disclosure of Confidential
Information and take all reasonable steps to cooperate with Disclosing Party to prevent further use
or disclosure.The Receiving Party will be responsible for any breach of this Agreement caused by
its Representatives.
13.3 No Rights in Confidential Information. Customer and Landis+Gyr hereby acknowledge and agree
that all Confidential Information of the other party shall remain the sole and exclusive property of
such other party and that the receiving party shall have no proprietary rights,title or interests therein
except as otherwise provided in this Agreement.
13.4 Termination. Upon termination for any reason, or at any other time that Customer or Landis+Gyr
demands, the other party shall promptly deliver and/or certify destruction of Confidential
Information, as appropriate, to the requesting party all Confidential Information (copies and
originals)of the requesting party as may be in the other party's possession or under its control.
14. Limits of Liability
14.1 EXCLUSION OF INDIRECT DAMAGES. EXCEPT WITH RESPECT TO A BREACH OF
CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE
RESPONSIBLE FOR ANY LOSSES OR DAMAGES THAT ARE INDIRECT,
CONSEQUENTIAL OR PUNITIVE,INCLUDING,LOSS OF REVENUE,LOSS OF PROFITS,
OR LOSS OF BUSINESS OPPORTUNITY.
14.2 CAP ON DIRECT DAMAGES. EXCEPT WITH RESPECT TO (A) A BREACH OF
CONFIDENTIALITY OBLIGATIONS, (B) OBLIGATIONS UNDER THIS AGREMENT
RELATED TO INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT, (C) PESONAL
INJURY OR DEATH OR DAMAGE TO ANY REAL OR TANGIBLE PERSONAL PROPERTY
CAUSED BY EITHER PARTY'S GROSS NEGLIGENT ACTS OR OMISSIONS OR WILLFUL
MISCONDUCT, THE TOTAL LIABILITY OF EITHER PARTY IN RESPECT OF ALL
CLAIMS IN THE AGGREATE,REGARDLESS OF WHETHER SUCH LIABILITY IS BASED
ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES,
FAILIURE OF ESSENTIAL PURPOSE OR OTHERWISE, UNDER THIS AGREEMENT
SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO LANDIS+GYR DURING THE
TWELVE(12)MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
15. General
15.1 Complete Agreement, Modification and Assignment. The parties agree that this Agreement and
any ancillary agreements, exhibits or schedules constitutes the complete and exclusive agreement
between them with respect to its subject matter and supersedes all previous understandings,
negotiations, proposals, acknowledgements, and representations, whether oral or written with
respect thereto. No modification of this Agreement will be effective unless it is in writing and
signed by authorized representatives of Customer and Landis+Gyr. Customer may not assign this
Agreement, a Purchase Order, or its rights or obligations under them without the express written
consent of Landis+Gyr which shall not be unreasonably withheld. Any exhibit attached hereto is
incorporated herein by this reference.
15.2 Notices.Notices,other than routine communications having no legal effect,shall be in writing and
shall be sent by certified United States mail (return receipt requested), by guaranteed overnight
delivery, by courier,or by confirmed facsimile addressed to the addresses set forth below:
11
For Customer: City of Aspen
130 S Galena Street
Aspen,CO 81611-1975
Attn: Lee Ledcsma
Facsimile No: 970.920.5197
For Landis+Gyr: Landis+Gyr Technology, Inc.
30000 Mill Creek Avenue, Suite 100
Alpharetta,GA 30022
Attn: Legal Department
Facsimile No: 678.258.1686
15.3 Force Majeure. Except for payment obligations, neither party is liable for failing to fulfill its
obligations due to acts of God, civil or military authority, war, riots, strikes, fire, or other causes
beyond its reasonable control.To the extent a party is substantially delayed by force majeure from
performing its obligations hereunder, such party shall give notice and details of the force majeure
to the other party as soon as practicable, then the parties may extend the time for performance by
written agreement. In the event it shall become impossible for Landis+Gyr or Customer to perform
its respective obligations because of force majeure, then in such event the party so unable to
perform may terminate this Agreement upon written notice to the other. In no event shall an event
of force majeure excuse or delay the payment of any amount owed by one party to the other party
under this Agreement.
15.4 No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement, and no
party other than Landis+Gyr and Customer shall have any legally enforceable rights under this
Agreement.
15.5 Headings. All headings used in this Agreement are for reference purposes only and are not part of
this Agreement.
15.6 Waiver, Severability. No delay or omission by Customer or Landis+Gyr in enforcing its rights or
remedies under this Agreement shall impair such right or remedy or be deemed to be a waiver
thereof. Any waiver, in whole or in part of any provision of this Agreement will not affect or be
considered to be a waiver of any other provision.No waiver of this Agreement shall be valid unless
in writing and signed by the parties thereto. If any term of this Agreement is found to be
unenforceable or invalid for any reason, such term shall not affect the other provisions, but such
unenforceable term shall be deemed modified to the extent necessary to render it enforceable,
preserving to the fullest extent permitted the intent of Customer and Landis+Gyr set forth in this
Agreement, and all other terms will remain in full force and effect.
15.7 Independent Contractor. Nothing in this Agreement shall be read as appointing either party as the
agent or legal representative of the other party for any purpose whatsoever, nor shall either party
hold itself out as such. This Agreement does not create and is not intended to create any express
or implied relationship of joint ventures, partners,employer and employee, associates,or principal
and agent between the parties,and both parties are acting as independent contractors and principals
for their own accounts. Neither party is granted any right or responsibility for or on behalf of the
other or otherwise to bind the other. In providing the Services and Products,Landis+Gyr shall have
sole responsibility for all persons employed by it in connection with the performance of such
Services; and, except as provided in this Agreement, Landis+Gyr shall solely determine the
methods, details, and means of performing the Services.
12
15.8 EEOC and Affirmative Action.
(a) Landis+Gyr is in compliance with all of the laws and Executive Orders prohibiting
discrimination, including but not limited to Title V11 of the Civil Rights Act of 1964 as
amended, the Civil Rights Act of 1991, 42 USC 2000(e), et seq., and all applicable state
and local laws against discrimination.
(b) Landis+Gyr and subcontractor,if any,shall abide by the requirements of 41 CFR§§60-
1.4(a), 60-300.5(a) and 60-741.5(x). These regulations prohibit discrimination against
qualified individuals based on their status as protected veterans or individuals with
disabilities,and prohibit discrimination against all individuals based on their race,color,
religion,sex, or national origin. Moreover, these regulations require that covered prime
contractors and subcontractors take affirmative action to employ and advance in
employment individuals without regard to race, color, religion, sex, national origin,
protected veteran status or disability.
15.9 Export Regulation.The Products, including any software,documentation and any related technical
data included with, or contained in, such Products, and any products utilizing any such Products,
software,documentation or technical data(collectively,"Regulated Products")may be subject to
US export control laws and regulations, including the Export Administration Regulations and the
International Traffic in Arms Regulations. The Customer shall not, and shall not permit any third
parties to, directly or indirectly, export, re-export or release any Regulated Products to any
jurisdiction or country to which, or any party to whom, the export, re-export or release of any
Regulated Products is prohibited by applicable federal or foreign law, regulation or rule. The
Customer shall be responsible for any breach of this Section 15.8 by its, and its successors' and
permitted assigns', affiliates, employees, officers, directors, partners/members/shareholders,
customers,agents,distributors,resellers or vendors.The Customer shall comply with all applicable
federal or foreign laws, regulations and rules, and complete all required undertakings (including
obtaining any necessary export license or other governmental approval), prior to exporting, re-
exporting or releasing any Regulated Products.
15.10 Publicity. Notwithstanding any other provision of the Agreement, Landis+Gyr shall not, without
the Customer's prior written consent,publish any information pertaining to the Agreement,whether
during the term of the Agreement or thereafter. Nor shall the Customer, without Landis+Gyr's
prior written consent,publish any information pertaining to the agreement,whether during the tern
of the agreement or thereafter. Consent from either party will not be unduly withheld.
15.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, and will become effective and binding upon the parties as of the Effective
Date at such time as all the signatories hereto have signed a counterpart of this Agreement.
15.12 Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent
upon funds for that purpose being appropriated, budgeted and otherwise made available. If the
Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, the
Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms
of the Agreement.
13
Acknowledged and agreed by the authorized representatives of the parties.
Landis+Gyr Technology, Inc. City of Aspen
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14
EXHIBIT A TO MASTER AGREEMENT
PRODUCTS PRICING SCHEDULE AND DESCRIPTION OF SERVICES
A. Project Delivery Services Overview
The parties will perform in accordance with the following summary(see Table 1) in connection with
the deployment and implementation of the Gridstream RF Mesh IP AMI System:
Table I —Summary of Roles
Services Landis+Gyr Customer
Project Management Support
System Design 4
Training J
Installation (network) J
Installation (endpoint)
Field Engineering(on-site field installation
support)
Standard Integration Services(as described
below). If custom interfaces are required, a
separate SOW will be mutually agreed upon
for an additional fee.
System Administration
WAN Backhaul Communications
15
B. Gridstreaar RF Mesh IP Solution Pricing
The following table represents Products provided by Border States Electric, Distributor.
Description Quantity I Unit Price Extended Price
Electric Meters with Communication Modules
Residential
RF FOCUS AXe-SD Form 2S — 100% Deployment 2,500 $139.08 $347,770.00
RF FOCUS AXe Forms 1S/2SE/3S/4S for Residential 50 $116.09 $5,804.50
RF FOCUS AXe-SD Form 12S for Residential 150 $191.49 $28,723.50
RF FOCUS AXe Form 2S for Residential ANY $104.60 TBD
RF FOCUS AXe-SD Form 2S for Residential ANY $143.68 TBD
RF FOCUS AXe-SD Form 1S for Residential ANY $155.17 TBD
Commercial and Industrial
RF FOCUS AX Polyphase Forms 8S/9S, 16S,365,45S 400 1 $234.48 $93,792.00
RF FOCUS RSRS4x Forms 5S, 6S, 8/9S, 12S, 16S ANY 1 $275.86 TBD
Electric Meters with Communication Modules(provided by Distributor Total: $476,090.00
The following table represents Products and Services provided by Landis+Gyr.
Description Quantity Unit Price Extended Price
Water Communication Modules
RF Mesh Wall/Pit Mount Water Module 4,000 $87.00 $348,000.00
Network Equipment
Network Gateway(N2450)with LTE, RF Mesh Radio 3 $4,700.00 $14,100.00
and Mounting Kit/Cabling
Router and Kit with 20 ft. Cable 54 $1,530.00 $82,620.00
RF Tools
Tech Studio Software License(per user 1 $1,100.00 $1,100.00
Tech Studio Annual Maintenance(per license) Please reference the Software Support and
Maintenance A=reement for details
Field Tool Kit 1 $1,600.00 $1,600.00
Water Module Field Tool DMMS with Software 1 $3,000.00 $3,000.00
Master Meter Activator l $300.00 $300.00
Master Meter AC Adapter 1 $125.00 $125.00
DMMR Remote Antenna 1 $250.00 1 $250.00
Software and Support
Command Center SaaS Fee(based on 7,100 Endpoints) Please reference the SaaS Agreement
Schedule B Service Order No. 1
Advanced Security Endpoint License(based on 7,100 1 $7,100.00 $7,100.00
Endpoints)
Advanced Security Endpoint License Annual Please reference the Software Support and
Maintenance annual per endpoint fee Maintenance Agreement for details
Advanced Security SaaS Fee(based on 7,100 Endpoints) Please reference the SaaS Agreement
Schedule B Service Order No. 1
Advanced Security Setup Fee(one-time) I $1 1,000.00 $11,000.00
Services and Training
Project Delivery Services 1 $165,000.00 $165,000.00
Training see Clarification 22 below for details 1 $15,500.00 $15,500.00
Consumer Portal
16
SmartData Connect Implementation Fee 1 1 $30,000.00 1 $30,000.00
SmartData Connect(Consumer Portal) SaaS Fee based Please reference the SaaS Agreement
on 7,100 Endpoints Schedule B Service Order No. 2
Prepay SaaS Fee for 355 Endpoints Please reference the SaaS Agreement
Schedule B Service Order No. 3
Street Light
Street Light Controller 400 $145.00 $58,000.00
Street Light HES Software SaaS Fee Please reference the SaaS Agreement
Schedule B Service Order No. 4
Installation
RF FOCUS AXe-SD(Form 2S) 100% Deployment 2,500 $37.00 $92,500.00
Installation
RF FOCUS AXe Forms lS/2SE/3S/4S Installation 50 $79.00 $3,950.00
RF FOCUS AXe-SD Form 128 Installation 150 $40.00 $6,000.00
RF FOCUS AX Polyphase(Forms 8S/9S, 16S,36S, 400 $59.00 $23,600.00
45S) Installation
3/e"Water Module Installation 1,000 $62.00 $62,000.00
l"Water Module Installation 1,400 $62.00 $86,800.00
1 1/2" Water Module Installation 1,000 $83.00 $83,000.00
2"Water Module Installation 500 $83.00 $41,500.00
4"Water Module Installation 100 $124.00 $12,400.00
Network Gateway Installation 3 $453.00 $1,359.00
Router Installation 54 $453.00 $24,462.00
Landis+G r Total: $1,175,266.00
PROJECT TOTAL: $1,651,356.00
C. Clarifications
Electric Meters with Communication Modules
1. Electric meters with communication modules are not within the scope of this Agreement. Landis+Gyr
has included your local Landis+Gyr meter distributor, Border States Electric, pricing in the above
pricing table as a courtesy. Please contact Border States Electric for electric meter purchase details.
Water Communication Modules
2. Water meter pricing is not within the scope of this Agreement.
3. Water module pricing assumes the use of Landis+Gyr's Pit-Mount/Wall-Mount Water Module.
4. The water AMI module is used for connection to compatible encoder meter registers. The following
encoded registers are supported through a three-wire interface to the Landis+Gyr Two-way Water
Communications Module: Master Meter; Sensus ECR and ICE, iPERL and accuSTREAM; Badger
ADE, HR-E, and HR-E LCD; Neptune ARB V and VI; Hersey Translator; Elster AMCO Invision
(Sensus and Elster protocols); Metron-Farnier Hawkeye; and Actaris/Itron Cyble Coder.
5. Optionally, Landis+Gyr also offers an integrated Interpreter Water Module suitable for
retrofitting to compatible vendors' meters.The Interpreter water module is$150.00 each.
6. The following water meter manufacturers are supported with the Interpreter integrated solution:
Elster AMCO, Hersey, Badger,Neptune, Sensus SR II, Precision and Master Meter. Please
reference the Landis+Gyr Water Compatibility Guide for additional details.
17
7. Nicor connectors are available for the Pit-Mount or Wall-Mount modules for an additional $20.00 each.
8. Water modules supported by the Gridstream RF Mesh IP solution are available 3rd quarter 2019.
Network Equipment
9. Network Equipment(Network Gateway and Router)quantities are approximations of required
quantities and have been developed from the 3,094 electric and 3,929 water locations provided by
the Customer. Network Equipment quantities assume a Router mounting height of 20 feet above
ground level(AGL). Alternate mounting locations, configurations and heights may require
additional, brackets,cables or antennas,that are not included in the price shown. Actual Network
Equipment quantities necessary for the AMI System to function properly may vary based on
verification of final meter quantities, system analysis and requirements, locations, deployment
approach, and system optimization needs.
10. Customer will provide WAN backhaul access to each Network Gateway.
11. Customer will provide new or existing poles, of an appropriate height, with 120/240V power
source for installation of network equipment.
12. The Network Gateway(N2450)will be available to purchase in July 2019. Landis+Gyr will work
with Customer to develop a mutually agreed upon deployment schedule.
RF Tools
13. Tech Studio is a required field tool for the Landis+Gyr RF Mesh IP solution. Pricing includes one
(1) license for each user instance of Tech Studio.
14. The Tech Studio Software License fee is a per-user license fee for the Tech Studio software and
does not include the cost of a computer or tablet upon which the software is installed.
15. Each user of Tech Studio must have a unique Username and Password of authentication with
Command Center to use the tool. Maintenance charges are based on the total number of users set
up for authentication.
16. The Field Tool Kit is also required to enable communications to the endpoint device.
17. Tech Studio training is included in the RF Deployment training course. Should additional training
be required,an online Tech Studio training course is available through the Landis+Gyr Training
Department for$200 per login.
18. RadioShop software is available when requested under license at no additional charge.
19. DMMR with Software Fee includes DMMR Receiver and Charger(less antenna)and required
software for field programming of water modules.
20. The Master Meter Activator is a field installation tool required for"busting"or"waking up"
water modules.
Software and Support
21. Customer will utilize Landis+Gyr's Software-as-a-Service (SaaS)Command Center(hosting)
offering, with Landis+Gyr hosting the head-end application in its Network Operations Center
(NOC). Please reference the SaaS Agreement for details.
22. Landis+Gyr offers a standard suite of MultiSpeak and CIM-compliant APIs for Command Center
18
as part of its standard solution offering. Integration support and interface development required
beyond these standard APIs will be priced based on time-and-material support or lump sum pricing
based upon a defined scope of work. For integration details, upon request, Landis+Gyr will provide
additional details via the Integration Suite Technical Brief icer. 2.0.
Services and Training
23. Project Delivery Services pricing is based on services being provided by Landis+Gyr for a period of
twelve(12) months, beginning at contract execution.
24. Training is required prior to deployment. Pricing includes:
• Two(2)online training sessions for Security
• One(1)classroom training course for RF Network Deployment
• One(1)classroom training course for Command Center Application
• One(1)online training session for Implementing Two-Way Water Meters in the Gridstream Solution
• SmartData Connect Training
• Street Light Training-2 Day On-Site Initial Training(mandatory for<25,000 Controllers)
• Forty(40)online training credits have also been included for use with continuing education.
25. Pricing for online training sessions is per log-in/registration.
26. RF Training pricing assumes that two(2)employees from the Customer will attend classroom
training at Landis+Gyr's Pequot Lakes, MN,or Lafayette, IN, locations only. Additional seats are
$1,200.00 per seat.
27. The Customer is responsible for its own travel and expenses related to training. Delivery of
product and system education is offered via several training venues,and selection of the
appropriate type of training is negotiable.
28. As an option, RF Training may be provided on-site at a Customer facility for$12,500.00.
Training includes three days of on-site training for up to 12 students. Additional seats are
available for$250.00 per seat.
Consumer Portal
29. SmartData Connect(SDC)Consumer Portal will be provided as a hosted SaaS offering for 7,100
endpoints. Please reference the SaaS agreement for details.
30. Landis+Gyr offers SDC Implementation Services based on a fixed labor fee for installation and
configuration. Integration to Landis+Gyr's Command Center headend is included at no charge.
Travel and related costs are billed additionally as incurred. These services require pricing to be
developed based on a mutually agreed-upon scope of work.
31. All Hosted/SaaS SDC Consumer Portal and Prepay fees begin at software installation. SaaS
offerings require a 3-year initial commitment to the service with annual renewals thereafter. SaaS
service fees are subject to annual CPI increases after the initial 3-year commitment.
32. Landis+Gyr offers on-site SDC Training at a Company facility for$6,000.00 per training class.
Travel and related costs are billed additionally as incurred.
Street Light Control
33. Street Lights will be located within range of an appropriate network device. Any Street Lights
that do not meet this criterion may require additional network equipment to provide coverage in
that area.
19
34. Landis+Gyr Street Light Headend System (HES) solution is offered as a SaaS solution. Please
refer to the SaaS Agreement for details.
Installation
35. Installation pricing assumes installation of single-phase electric meters, polyphase electric meters,
RF Network Gateways, RF Routers and water module retrofits based on 100% Wall-Pit Mount
modules. Installation fees may be adjusted for installation of the Interpreter Water Module.
36. The installation package from Landis+Gyr's installation contractor includes:
• Installation of new electric meters and water modules
• Work order management system.
• Activation of new endpoints
• Record new meter data
• Provide or capture GPS data from meter location
• Digital photograph of meter reading before and after installation
• Provide photographic evidence of retired and new meters at each installation address
Landis+Gyr's installation contractor will provide the following:
• Dedicated team of field technicians for electric meter, Network Gateway, and Router
installation
• Dedicated team of field technicians for water meter installation
• Personal Protective Equipment
• Vehicles with company-marked logo including bucket truck when required
• Uniforms with company-marked logo
37. Installation duration is assumed to be 12 weeks for electric meters and 12 weeks for water module retrofits.
38. Pricing assumes installation will be performed in a continuous route order.
39. Pricing assumes project would begin during the off-peak time of the ski season.
40. Pricing for installation is subject to change based on final duration, scope and requirements of
installation and assumes a full project commitment for the quantities stated in this proposal.
Deviations may require price changes to consider the portion of the project awarded.
41. Installation pricing provided is contingent on the execution of a contract between all required parties.
42. Network Equipment and electric meters will be deployed in advance of water installation.
43. It is assumed that all water endpoints are collocated with electric endpoints or located within
range of an appropriate network device to enable adequate meshing. Any stand-alone water
modules that do not meet this criterion may require additional network equipment to provide
coverage in that area.
44. Any additional appropriate capable network device required for water endpoints outside of the electric
endpoint network will be deployed at the same time as the electric endpoint network equipment.
45. Electric endpoints will be deployed in a contiguous manner to enable adequate meshing, that the
water module deployment will not begin until electric meters are in place,and that a compatible
version of Command Center software is in place to support the water modules.
20
Additional Clarifications
46. The following optional items are available for purchase, as needed:
Item Quantity Unit Price
Remote Antenna Kit Any $730.00
Power Cable Assembly for Remote Any $80.00
Antenna Kit
RF Coupling Antenna Any $55.00
IWR 12-24 VDC Input Any $775.00
IP IWR Radio(Ethernet DC IWR) Any $1,000.00
47. Landis+Gyr standard lead time for product shipment for electric meters with communication
modules,water modules,Network Gateways,and Routers is 12-20 weeks from the time the
purchase order is acknowledged by Landis+Gyr to the time the order is shipped. Standard lead
time for product shipment can vary,and upon receipt and confirmation of your purchase order,an
estimated shipment date will be provided.
21
A Gridstream RFAMI System Deployment Project Statement of Work.
The objective of the services described in this document is to support Customer in deploying its
full deployment area and enable Customer to operate the system. The Deployment Area will
consist of mutually agreed upon endpoints that are in a contiguous area and reside under an
installed Gridstream network designed to support system functionality. Specifically, Landis+Gyr
will provide project delivery services for Customer to deploy an RF electric meter Initial
Deployment Area with up to 3 Network Gateways, 54 Routers, 3,094 electric Endpoints, and
3,929 water modules. The Network Gateway, Router, and Endpoint limits will not be exceeded
without a formal change to the scope of the project.
All deliverables associated with services will be completed in no more than twelve (12) months
from project execution. The service duration assumes receipt of Purchase Orders and all required
documentation at the time of contract signature. If deliverables are not complete within twelve
(12)months,additional charges may apply depending on reason for delay. If desired, Customer
may elect to extend delivery services at an additional cost. This will be managed through the
project change process.
Order to Acceptance(OTA)-Our Proven Methodology
OTA,the project implementation methodology described herein, is informed by Landis+Gyr's
long history and strong reputation for solution execution over two(2)decades.The OTA process
is rooted in the principles of the internationally recognized Project Management Institute's
Project Management Body of Knowledge(commonly called PMI's PMBOK). All of
Landis+Gyr's Project and Program Managers are certified by the Project Management Institute
(PMI)as Project Management Professionals(PMPs),meaning each project leader has been
trained in project management best practices and certified as a project management expert.
Landis+Gyr's methodology functions in accordance with the Landis+Gyr Integrated Management
System (IMS), with rigorous and disciplined ISO 9001 (Quality Management), 14001
(Environmental Management)and 18001 (Health and Safety Management)registered processes.
The OTA process is comprised of four(4) main implementation phases:
1. Initiate
2. Plan
3. Execute&Control
4. Project Transition
The weeks associated with each phase are approximate and may vary nominally during the deployment.
Figure 1 illustrates the phases and main activities that occur within OTA phases.
22
Figure 1 Overview of the OTA Process
One Order
• Advanced Metering Project Communications RlskManagement Scope Management Schedule Management
Infrastructure Status Updates Issue Management Change Management Resource Management
Distribution
Automation a TO
Meter Data Gate Gate Gate
Management
Advanced Grid Provide resource CharterProject Kickoff with customer Build pilot system Close the project with
buildups BulldTeam Conduct workshops Test and Accept Pilot Customer
Analytics Write service deliveryTransition Customer to
SetupProject Systems Finalize design basis Modify designs
• Advanced Load content validate contract Create Project Plans Implement system Service Desk
Transition from Sales requirements Baseline Schedule Test and Accept Measure project
Management to Delivery performance
Conduct gate review System
Review lessons
Initiate Phase
In the Initiate Phase,the Landis+Gyr project manager(PM)engages internal resources to setup
the project, develops an initial understanding of project requirements,obtains internal
authorization to allocate team resources to the project,engages the Landis+Gyr project team, and
kicks off the project with Customer in an on-site review. Customer-facing project deliverables
(Table 1)are presented at Customer's kickoff and may require input from Customer.
Initiate phase Landis+Gyr deliverables:
1. Meter programs and Product Configuration Approval(PCA) worksheet
2. Initial design and infrastructure spreadsheet for full deployment
3. Obtain Purchase Orders for Services and Equipment
Table 1 Initiate Phase Activities
Landis+Gyr Services Provided Customer Responsibility Customer
Resource Resource
Sales/ Conducts 1 132 Training Attends Training Meter Engineer
Distributor Creates meter programs Defines meter functional
requirements
Completes PCA worksheet Provides meter specifications
/ labeling etc.
Sales/ inputs forecasts into Landis+Gyr Provides written material Project Manager
Distributor systems forecasts
Obtains Equipment and Services Provides Equipment and
Purchase Orders Services Purchase Orders
23
Conducts internal planning, obtains Works with Landis+Gyr
resources, plans for kickoff meeting project manager to create
agenda, provide personnel
for Customer kickoff
Program Validates requirements with the Reviews requirements with Project Manager
Manager Customer and distributor the Landis+Gyr Project
Manager
Conducts internal planning, obtains Works with Landis+Gyr
resources, plans for kickoff meeting project manager to create
agenda, provide personnel
for Customer kickoff
Network Design Develops initial design and Provides meter coordinates Field Services
Engineer infrastructure spreadsheet for initial and asset information to
deployment area Landis+Gyr,as available
Plan Phase
In the Plan Phase,the project team prepares for project execution, including formally
documenting and achieving agreement with Customer on the final requirements, final system
design, develop an installation plan, and the baseline schedule. Landis+Gyr will also conduct
workshops on configurations and integrations to be performed,complete all site surveys,and
deliver formal solution training. Please note additional seats may be requested for training at an
additional cost. For a list of activities in the Plan Phase, refer to Table 2.
Plan Phase Landis+Gyr Deliverables:
1. Project kickoff meeting
2. Project Management Plans including: project schedule,resource plan, materials plan,
communications plan,deployment plan,and risk/mitigation plans
3. Change requests as needed
4. Documentation from onsite kickoff meeting
5. Field site surveys for up to 3 Network Gateways and 54 Routers
6. Final design and infrastructure spreadsheet for full deployment area based on review of field
site surveys completed during the project services term
7. Planning of Advanced Security setup in Landis+Gyr NOC
8. Delivery of PCA meters and network equipment for Deployment Area
9. Command Center classroom training for two(2) participants at Landis+Gyr site
10. Network Deployment classroom training for two(2)participants at Landis+Gyr site
24
Table 2 Plan Phase Activities
Landis+Gyr Services Provided Customer Responsibility Customer
Resource Resource
Program Develops schedule,established Coordinates with Landis+Gyr Project Manager/
Manager/ weekly status update meeting PM, attends weekly meetings Customer Project
Landis+Gyr Leads project kickoff meeting Confirms agenda, provides Team
Project Team resources
Manages materials flows, including Coordinates testing and
PCA meter delivery validation of PCA meters and
approves for production
Engage with installation sub- Attend sub-contractor
contractor planning meetings as
necessary
Technical Conducts PCA review on meters Coordinates internal PCA Project Manager
Implementation testing, approves,and places Meter Shop
Engineer materials orders
Technical Leads workshops on IT network Provides input to workshops Project Manager
Implementation configuration, integration planning, System Admin
Manager test planning AMI Admin
Technical Lead Advanced Security hardware Participate in workshops and Project Manager
Architect planning efforts provide appropriate input System Admin
AMI Admin
Security Admin
Field Service Conducts site surveys for up to 3 Participates in site surveys Field Operations
Rep Network Gateways and 54 Routers with Landis+Gyr Field
Service Rep
Training Conducts Command Center, Attends Command Center, Field Operations,
Network Deployment, and Network Deployment, and I lead End
Implementing Two-Way Water Implementing Two-Way Operations
Training Water training
Deployment Conduct training for site survey Attend training for Field Operations
Manager certification certification to conduct site
surveys for entire deployment
area
Network Design Develops final design from site Confirms acceptance of the Project Manager
Engineer surveys final design;orders additional
hardware as needed
Execute Phase
In the Execute Phase, the PM actively manages and controls the project delivery according to the
methods described in the Project Management Plans. Specifically, Landis+Gyr will ensure Command
Center is installed and functional and that the network has been deployed effectively for the upcoming
meter installations. For all activities associated with the Execution Phase please refer to Table 3.
Execute Phase Deliverables:
1. SaaS Command Center instance and initial login credentials
2. Advanced Security system setup in Landis+Gyr NOC
3. System Commissioning of Command Center
25
4. Commissioning and installation of network equipment and meters/modules, and
ensuring "Normal" status in Command Center
5. Integration scope and plan, including: Documentation from integration workshop,
including finalized integration scope, standard integration diagram, and sample test plan
6. Integration implementation, including functional Command Center extracts and/or
MultiSpeak/CIM web service calls
7. Onsite Water pre-deployment workshop and limited field support for initial water
module installations
Table 3 Execute & Control Phase Activities
Landis+Gyr Services Provided Customer Responsibility Customer
Resource Resource
Project Manager Manage installation sub-contractor, Attend project status Project Manager/
conduct status meetings, supply meetings Customer Project
chain, L&G project team, report on Team
progress to stakeholders
Technical Requests hosted Command Center Install Field Tools System/AMI
Implementation setup and supports Field Tools Admin
Manager installation _
Configures Command Center and Conducts security token and
assists Customer with security system key process
tokens and system keys _-
Leads IT network configuration Participates in IT network
between Landis+Gyr's Network configuration
Operations Center(NOC)and
Customer
Implements standard integration to Implements any needed
known file-based or changes to CIS
MultiSpeak/CIM-compliant CIS
Conducts onsite Water pre- Provide technicians who have
deployment workshop and limited completed Landis+Gyr Water
field support for initial Water training
module installations
Technical Leads RF Network Commissioning Assists in installation Field Operations
Implementation for up to 3 Network Gateways and activities where necessary /AMI Admin
Manager, Field 54 Routers
Service Rep • Verifies network settings and
coms
• Ensures meter registration and
function
• Verifies network field installation
Ensures up to 3,094 electric Assists in installation
Endpoints and 3,924 water modules activities where necessary.
are"Normal"and communicating in
Command Center
26
Project Transition Phase
In this final phase, the project is prepared for internal Landis+Gyr closure and Customer is transitioned to
Landis+Gyr Customer Operations as specified in Customer agreement.
Project Transition Phase Deliverables:
1. Testing and acceptance of the system
2. The PM issues Customer Satisfaction Survey to Customer
3. The PM conducts the OTA to Acceptance to Retirement(ATR)handoff meeting, seeking
written approval from Customer Operations to make the transition
For a list of activities in the Project Transition Phase,refer to Table 4.
Table 4 Project Transition Phase Activities
Landis+Gyr Customer
Resource Services Provided Customer Responsibility Resource
Technical Support system testing, provides Installs Endpoints,conducts Field Operations
Implementation resolution as needed testing according to plan AMI
Manager Administration
Project Manager Conducts closeout,transitions Accepts project,attends Project Manager
Customer to Landis+Gyr service transition meeting to service
desk desk
27
EXHIBIT B TO MASTER AGREEMENT
It is hereby mutually agreed by the Parties that the following list documents are to be included as
part of this Agreement and herein incorporated by reference for all purposes:
Attachment I_Infentionally blank
Attachment 11_Section 2—Technical Proposal (Landis+Gyr)
Attachment III_Section 3—Qualifications(Landis+Gyr)
Attachment IV Section 4 Price and Business Relationship Proposal (Landis+Gyr)
Attachment V_Section 5_Appendix(Landis+Gyr)
Attachment VI—Section 8—Supporting Documentation(Landis+Gyr)
Attachment VII_2017_50594_from Landis+Gyr(Landis+Gyr)
Attachment VIII_Landis+Gyr Response to Aspen Questions for WebEx_May 22 2018 (Landis+Gyr)
Attachment IX_Request for Proposals for Advanced Metering Infrastructure System issued by City of
Aspen Purchasing Department, Publication 12/22/2017, Solicitation Number 2017-50594 and all
at and all attachments and exhibits related thereto(the"RFP")
NOTE: Attachments VI,VII,VIII,IX are specifically incorporated by reference but not physically attached
to this Agreement due to their extensive volume.
28
Software as a Service Agreement
This Software as a Service (SaaS) Agreement (referred to hereinafter as "Agreement" or "SaaS
Agreement"), dated as of last signature date below ("Effective Date"), is by and between City of Aspen,
("Customer") with offices located at 130 S Galena St, Aspen, CO 81611-1975, and LANDIS+GYR
TECHNOLOGY,INC.with offices located at 30000 Mill Creek Avenue,Suite 100,Alpharetta,GA 30022
("Landis+Gyr").
WHEREAS, Customer requires third-party hosted"software as a service"(the"SaaS Services,"as further
described herein)with respect to certain of Customer's information technology needs and related smart grid
program;
WHEREAS, Landis+Gyr has agreed to provide the SaaS Services to Customer, all on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and representations set forth in this
Agreement, the parties hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings set
forth in this Section.
"Access Credentials" means any user name, identification number, password, license or security
key, security token, PIN or other security code, method, technology or device used, alone or in
combination,to verify a person's identity and authorization to access and use the SaaS Services.
"Affiliate"means any entity(including any person, without limitation, any corporation, company,
partnership, limited liability company or group) that directly through one or more intermediaries,
controls, is controlled by or is under common control with Landis+Gyr or Customer for so long as
such control exists. For purposes of this definition,"control"means having more than fifty percent
(50%)of the shares or other equity interest with voting rights in the legal entity or organization at
issue.
"Authorized Users" means any Customer employee, contractor or agent, or any other person
authorized by Customer to access and use the SaaS Services through Customer's account under this
Agreement.
"Business Day" means a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by Law to be closed for business.
"Customer Data"means any and all information,data,materials,works,or other content,relating
to Customer's end customers' information relating to electricity,water or natural gas consumption,
load profile, billing history, or credit history that is or has been obtained or compiled by Customer
in connection with supplying electric services, water services or gas services to that customer or
group of customers (regardless of the media in which it is contained)that may be disclosed at any
time to Landis+Gyr by Customer or Customer's employees, agents, consultants, contractors, or
suppliers in anticipation of, in connection with, or incidental to Landis+Gyr's perfonnance of the
SaaS Services for or on behalf of Customer .
"Customer Systems" means the Customer's information technology infrastructure, including
computers, software, hardware, databases, electronic systems (including database management
systems) and networks, whether operated directly by Customer or through the use of third-party
services.
Main SaaS Agreement Page 1
"Documentation" means any manuals, instructions or other documents or materials that
Landis+Gyr provides or makes available to Customer in any form or medium and which describe
the functionality,components, features or requirements of the SaaS Services or Provider Materials,
including any aspect of the installation, configuration, integration, operation, use, support or
maintenance thereof.
"Disabling Code" means any software, virus, Trojan horse, time bomb or other code that is
harmful, disabling or which enables unauthorized access to the Landis+Gyr Systems or Customer
Systems, or theft or damage to Customer Data, or otherwise impairs the operation of the
Landis+Gyr Systems,any Customer Systems,or any Third Party system utilized by Landis+Gyr in
the Landis+Gyr Systems.
"Endpoints"means each of the following types of physical devices installed for use in the delivery
of any commodity:
i. a meter measuring the quantity of a commodity delivered, at a utility customer premise or
at any other point within the distribution system,with respect to which the Software stores,
processes, or makes accessible data specifically identified to that premise or distribution
point for use in one or more of the utility operations the Software performs or supports;
and
ii. an unmetered supply point with respect to which the Software performs calculations of
quantities of a commodity delivered in lieu of metering.
For avoidance of doubt, Endpoints do not include: aggregations of data from multiple Endpoints;
interfaces between the Software and other systems or applications; sub-meters or devices installed
at a utility customer premises beyond the meter; or devices only used to read, retrieve, or transmit
data from Endpoints.
"Intellectual Property Rights" means any and all intellectual property rights whether registered
or unregistered, and all applications for and renewals or extensions of such rights, including rights
comprising or relating to:(a)patents,patent disclosures and inventions(whether patentable or not);
(b)trademarks,service marks,trade dress,trade names, logos,corporate names and domain names,
together with all of the goodwill associated therewith; (c)works of authorship,designs,copyrights
and copyrightable works(including computer programs)and rights in data and databases;(d)trade
secrets, know-how and other confidential information; and (e) all similar or equivalent rights or
forms of protection.
"Interfaces" means Landis+Gyr's file transfer communications interfaces and data feeds
mechanisms between the Landis+Gyr Systems and the Customer's Systems which are developed,
operated, owned and maintained by Landis+Gyr pursuant to this Agreement including, as
applicable, any configuration and customization required to meet the requirements of this
Agreement, but excluding ownership of any customization that constitutes a component or
derivative of Customer's Systems.
"Landis+Gyr Materials" means all devices, documents, data, know-how, methods, processes,
software and other inventions, works, technologies and materials, including any and all Service
Software, Documentation, computer hardware, programs, reports and specifications, client
software and deliverables provided or made available to Customer in connection with
Landis+Gyr's performance of the SaaS Services, in each case developed or acquired by
Landis+Gyr independently of this Agreement.
"Landis+Gyr Personnel"means all employees and agents of Landis+Gyr,all subcontractors and
all employees and agents of any subcontractor, involved in the performance of Services.
Main SaaS Agreement Page 2
"Law" means any statute, law,ordinance, regulation, rule,code,order,constitution, common law,
judgment, decree or other requirement or rule of any federal, state, local or political subdivision
thereof, or any arbitrator, court or tribunal of competent jurisdiction.
"Permitted Uses" means any use of the SaaS Services by Customer or any Authorized User for
the benefit of Customer in or for Customer's internal business operations.
"Person" means an individual and any entity, including, but not limited to, any corporation,
partnership, joint venture, limited liability company, governmental authority, unincorporated
organization,trust or association.
"Process"means to perform any operation or set of operations on any data, information, material,
work,expression or other content, including to(a)collect,receive, input,upload,download,record,
reproduce, store,organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt,
alter, translate or make other improvements or derivative works, (b) process, retrieve, output,
consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make
available,or(c)block,erase or destroy."Processing"and"Processed"have correlative meanings.
"Supported Release" means versions of Service Software currently supported by Landis+Gyr.
Landis+Gyr will support at a minimum the current generally available release in addition to the
previous release of Service Software.
"Representatives" means a party's employees, officers, directors, consultants, legal advisors and,
with respect to Landis+Gyr, Landis+Gyr's subcontractors, and, with respect to Customer, solely
those of Customer's independent contractors or service providers that are Authorized Users.
"Service Software"means Landis+Gyr software application or applications and any third-party or
other software, and all new versions, updates, revisions, improvements and modifications of the
foregoing,that Landis+Gyr provides remote access to and use of as part of the SaaS Services made
available to Customer.
"Territory"means the Customer's service territory.
"Third Party Materials"means materials and information, in any form or medium, including any
software, documents, data, content, specifications, products, equipment or components of or
relating to the Services that are not proprietary to Landis+Gyr.
"Upgrade"means updating the Service Software to the most current generally available version.
Main SaaS Agreement Page 3
2. Services.
2.1 Services. Subject to and conditioned on Customer's and its Authorized Users' compliance with the
terms and conditions of this Agreement, during the Term, Landis+Gyr hereby grants to Customer
and its Authorized Users a non-exclusive, worldwide, subscription license, to access via a web-
based interface, execute and otherwise use certain of Landis+Gyr's hosted software and hardware
products, as more fully set forth in the applicable Service Order and shall provide the following
services: infrastructure and infrastructure monitoring, technical support,backup and recovery,data
center access training, and Service Software upgrades for Customer's productive use of such
services. Throughout the Term and at all times in connection with Landis+Gyr's actual or required
performance under this Agreement, Landis+Gyr will, in accordance with all terms and conditions
set forth in this Agreement and each applicable Service Order, provide to Customer and its
Authorized Users the following services("Services"):
a) the hosting, management and operation of the Service Software for availability and other
services for remote electronic access and use by the Customer and its Authorized Users
("SaaS Services")as described in one or more written,sequentially numbered service orders
specifically referencing this Agreement, which, upon execution of such service orders will
be attached as part of Schedule B and by this reference are incorporated in and made a part
of this Agreement(each,a"Service Order");
b) service maintenance and the Support Services as set forth in the applicable Service Order
and the Service Level Agreement described in Schedule A; and
c) such other services as may be specified in the applicable Service Order.
2.2 Landis+Gyr will provide the SaaS Services for 24 hours a day, 7 days a week in accordance with
the Service Level Agreement in Schedule A except for Scheduled Downtime, service downtime or
degradation caused by a Force Majeure Event or any other circumstances beyond Landis+Gyr's
reasonable control, including Customer's or any Authorized User's use of Third Party Materials,
misuse of the SaaS Services,or use of the Services other than in compliance with the express terms
of this Agreement and the Documentation.For avoidance of doubt,the SaaS Services do not include
managed services and Customer agrees that it shall operate Service Software and monitor its
operation of Service Software.
2.3 Documentation. Landis+Gyr represents and warrants that (i) the Documentation for the Service
Software will accurately and completely describe the functions and features of the Service
Software, including all subsequent revisions thereto and (ii) the Documentation will be
understandable by a typical end user and will provide Authorized Users with sufficient instruction
such that an Authorized User can become self-reliant with respect to access and use of the SaaS
Services. Customer will have the right to make any number of additional copies of the
Documentation for internal business purposes at no additional charge.
2.4 Service Orders. Service Orders will be effective only when signed by Customer and Landis+Gyr.
The initial Service Orders are attached hereto. Any modifications or changes to the SaaS Services
under any executed Service Order will be effective only if and when memorialized in a mutually
agreed written change order ("Change Order") signed by both Parties. Where a Change Order
may result in an adjustment to fees, Landis+Gyr will provide a written estimate of such adjustment
to Customer within ten (10) calendar days of Landis+Gyr's receipt of a Change Order. Upon
approval of the written estimate to complete the Change Order, the parties will each ratify the
Change Order indicating any adjustments to the fees, or delivery schedule.
2.5 Professional Services. During the Term of this Agreement, Landis+Gyr may also perform certain
implementation,consulting,training and/or support services("Professional Services")as specified
in mutually agreed upon written Statement of Work("SOW"). Each SOW will contain a reference
Main SaaS Agreement Page 4
identifying it as a SOW under this Agreement and will contain the following information, as
applicable:
(a) a description of scope of the Professional Services;
(b) any other items to be delivered ("Deliverable");
(c) the fees;
(d) an estimated schedule;
(e) assumptions on which the performance of the Professional Services or delivery of the
Deliverables is conditioned; and
(f) itemization, if any,of Reimbursable Expenses as identified pursuant to Section 6.3.
Any provision of a SOW that deems any Deliverable developed by Landis+Gyr to be a"work for
hire" or the property of Customer will be contingent upon payment to Landis+Gyr of all amounts
properly invoiced to Customer pursuant to the applicable SOW.
2.6 No Software Delivery Obligation. Landis+Gyr has no software delivery obligation and will not
ship copies of any of the Service Software used to provide the SaaS Services to Customer as a part
of the SaaS Services. Upon the end of the Service Order, Customer's right to access or use the
Service Software specified in the Service Order and the SaaS Services will terminate.
2.7 Use of Subcontractors.Landis+Gyr may from time to time in Landis+Gyr's discretion engage third
parties to perform Services(each, a"Subcontractor").
2.8 Designation of Responsible Contacts. Customer will provide Landis+Gyr with current appropriate
contact information such that Landis+Gyr may communicate maintenance notifications, outages,
support items and other communications under this Agreement to Customer on an ongoing basis.
3. Customer Obligations
3.1 Customer Systems and Cooperation. Customer,at all times during the Term to the extent applicable
for the specific Service Order, will: (a) set up, maintain and operate in good repair and in
accordance with the Documentation all Customer Systems on or through which the Services are
accessed or used; and (b) provide all cooperation and assistance as Landis+Gyr may reasonably
request to enable Landis+Gyr to exercise Landis+Gyr's rights and perform Landis+Gyr's
obligations under and in connection with this Agreement. To the extent it becomes necessary for
Landis+Gyr to have access to Customer Systems in order to perform the Services in accordance
with the Availability Requirements as set forth in the Service Level Agreement, Customer will
provide Landis+Gyr with such access. Unless otherwise stated in a Service Order,Customer agrees
that it will not send or provide Landis+Gyr access to any personally-identifiable information,
whether in data or any other form. Should Customer mistakenly provide PH to Landis+Gyr,
Customer shall immediately notify Landis+Gyr in writing in accordance with the notice provisions
herein,and reasonably cooperate with Landis+Gyr to take any mitigating actions deemed necessary
to remove such PII from the Landis+Gyr Systems.
3.2 Effect of Delay. Neither party is responsible or liable for the portion of any delay or failure of
performance caused in whole or in part by the other party's delay in performing, or failure to
perform, any of Customer's obligations under this Agreement.
3.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity
prohibited by Section 3.4, Customer shall, and shall cause its Authorized Users to, immediately:
Main SaaS Agreement Page 5
(a) take all reasonable and lawful measures within respective control of Customer and its
Authorized Users that are necessary to stop the activity or threatened activity and to mitigate the
effects of such activity (including, where applicable, by discontinuing and preventing any
unauthorized access to the Services and Landis+Gyr Materials and permanently erasing from
Authorized Users' systems and destroying any data to which any of the Authorized Users have
gained unauthorized access); and(b) notify Landis+Gyr of any such actual or threatened activity.
3.4 Suspension or Termination of Services. In addition to any other suspension or termination rights of
Landis+Gyr pursuant to the Agreement, certain extraordinary circumstances may require
Landis+Gyr to temporarily suspend Customer's access to and/or use of, or otherwise modify, the
SaaS Services and /or any component thereof, if. (a) Landis+Gyr receives a judicial or other
governmental demand or order, subpoena or law enforcement request that expressly or by
reasonable implication requires Landis+Gyr to do so; or(b) Landis+Gyr believes, in its good faith
and reasonable discretion,that:(i)Customer or any Authorized User has failed to comply with,any
term of this Agreement,or accessed or used the Services beyond the scope of the rights granted or
for a purpose not authorized under this Agreement or in any manner that does not comply with any
instruction or requirement of the Documentation;(ii)Customer or any Authorized User is,has been,
or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in
connection with any of the Services; or (iii) this Agreement expires or is lawfully terminated
pursuant to its terms. This Section 3.4 does not limit any of either party's other rights or remedies,
whether at law, in equity or under this Agreement.
4. Authorization and Restrictions.
4.1 Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and
performance in accordance with all other terms and conditions of this Agreement, Landis+Gyr
hereby authorizes Customer, to access and use,solely in the Territory during the Term,the Services
and such Landis+Gyr Materials as Landis+Gyr may supply or make available to Customer for the
Permitted Uses by and through Authorized Users in accordance with the Documentation and the
conditions and limitation set forth in this Agreement or any Service Order. In addition, Customer
is authorized to:
(a) generate, print,copy, upload,download,store and otherwise Process all GUI,audio,visual,
digital and other output,displays and other content as may result from any access to or use
of the SaaS Services;
(b) prepare, reproduce, print, download and a reasonable number of copies of Documentation
as may be necessary or useful for any Permitted Uses of the SaaS Services under this
Agreement;
(c) access and use(i)the SaaS Services for production uses and (ii)any applications provided
by Landis+Gyr as may be necessary or useful for the effective use of the SaaS Services for
the Permitted Uses hereunder; and
(d) perform, display, execute, and reproduce and distribute and otherwise make available to
Authorized Users,any Landis+Gyr Materials solely to the extent necessary to access or use
the SaaS Services in accordance with the terms and conditions of this Agreement.
4.2 Authorization Limitations and Restrictions. Customer will not and will not knowingly permit any
other Person to access or use the Services or Landis+Gyr Materials except as expressly permitted
by this Agreement and/or any Service Order and, in the case of Third-Party Materials, the
applicable third-party license agreement. For purposes of clarity and without limiting the generality
of the foregoing, Customer shall not, except as this Agreement or any Service Order expressly
permits:
Main SaaS Agreement Page 6
(a) rent, lease, lend, sell, sublicense,assign, distribute, publish, transfer or otherwise make the
Services or Landis+Gyr Materials available to any third party that is not an Authorized User;
(b) copy, modify or create derivative works or improvements of the Services or Landis+Gyr
Materials;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or
gain access to the source code of the Services or Landis+Gyr Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Landis+Gyr
Materials or access or use the Services or Landis+Gyr Materials other than by an Authorized
User through the use of his or her own then valid Access Credentials;
(e) use or authorize the use of the Services or Documentation in any manner or for any purpose
that is unlawful under applicable Law.
(f) remove,delete,alter or obscure any trademarks, Documentation,warranties or disclaimers,
or any copyright, trademark, patent or other intellectual property or proprietary rights
notices from any Services or Landis+Gyr Materials, including any copy thereof,
(g) access or use the Services or Landis+Gyr Materials in any manner or for any purpose that
infringes, misappropriates or otherwise violates any Intellectual Property Right or other
right of any third party,or that violates any applicable Law;
(h) access or use the Services or Landis+Gyr Materials for purposes of competitive analysis of
the Services or Landis+Gyr Materials, the development, provision or use of a competing
software service or product or any other purpose that is to Landis+Gyr's detriment or
commercial disadvantage; or
(i) otherwise access or use the Services or Landis+Gyr Materials beyond the scope of the
authorization provided in this Agreement or in any applicable Service Order.
4.3 Excess Use. If Customer's use of the SaaS Services exceeds the volume of use authorized in the
applicable Service Order(including as to the number of Endpoints),Customer will pay Landis+Gyr
the Fees attributable to the excess use in accordance with the applicable Service Order.
4.4 Non-Interference with Landis+Gyr's Customers. Customer agrees that its use of the SaaS Services
shall not restrict, inhibit, interfere with, or degrade other Landis+Gyr customer's use of the SaaS
Services (such as running custom queries against the database). If Customer's use of the SaaS
Services violates such restrictions as determined by Landis+Gyr, Landis+Gyr may suspend or limit
the SaaS Services of Customer that is causing the degradation of the services without penalty. In
addition, Landis+Gyr shall have the right to implement controls necessary to stop or limit future
occurrences of a similar nature.
Main SaaS Agreement Page 7
5. Term and Termination
5.1 Term. This Agreement will begin on the Effective Date and will remain in full force and effect
until three (3) years thereafter ("Initial Term") unless terminated by either party for cause, as
described in Section 5.4,"Termination for Cause," in which case this Agreement and all Service
Orders/SOWS will also be terminated. Except in the case of termination for breach by Landis+Gyr,
within thirty(30)days of the date of termination,Customer must pay all amounts remaining unpaid
for SaaS Services provided prior to the effective date of termination, plus related taxes and
expenses.
5.2 Term of Service Orders/SOWs. Each Service Order/SOW will remain in effect until the earlier to
occur of. a) termination of such Service Order/SOW by either party for cause as described in
Section 5.4 below; b)termination of such Service Order/SOW upon mutual written consent of the
Parties; or c) expiration of the Service Order Term or completion of all Services and the delivery
of all Deliverables required under the Service Order/SOW.
5.3 Renewal. Upon expiration of the Initial Term, this Agreement shall automatically renew for
successive one (1) year periods (each a "Renewal Term" and together with the Initial Term, the
"Term"), unless a party provides the other party with written notice of its intent not to renew this
Agreement at least ninety(90)days prior to the expiration of the then current Term.
5.4 Termination for Cause. A party may terminate a Service Order/SOW and this Agreement if:
(a) the other party is in default of a material obligation under the applicable Service Order/SOW
or this Agreement,and such default has not been cured within thirty(30)calendar days after
receipt of written notice(specifying the default)from the non-defaulting party.If the default
specified in such notice is cured within the thirty(30)day period, the Service Order/SOW
and Agreement will remain in effect; or
(b) the non-terminating party enters into liquidation (apart from a solvent liquidation for the
purposes of amalgamation or reconstruction)or is dissolved or declared bankrupt or has a
receiver, administrator or administrative receiver appointed over all or part of its assets or
enters into an arrangement with its creditors or takes or suffers any similar action.
5.5 Survival.The terms,conditions and warranties contained in this Agreement that by their sense and
context are intended to survive the performance thereof by either party hereunder will so survive
the completion of the performance, cancellation or termination of this Agreement, including
without limitation, Confidentiality, Infringement and Limited Warranties.
6. Fees and Expenses.
6.1 Fees. Customer agrees to pay for all services ordered as set forth in the applicable Service Order or
SOW (the "Fees"). All Fees are due thirty (30) days from the date of invoice. Any Fees not paid
within thirty(30)days after the date on which Customer receive an invoice(the"Due Date")will
accrue interest on the overdue balance from the Due Date at the rate of one half percent (I%) per
month, or the maximum lawful rate allowable under applicable law, whichever is lower.
6.2 Fees During Renewal Terms. Landis+Gyr's Fees are fixed during the Initial Term. Landis+Gyr fees
for Renewal Terms shall escalate annually as of each anniversary of the Effective Date of the
Service Order by the amount of the increase in the Consumer Price Index—All Urban Consumers
of the Bureau of Labor Statistics of the U.S. Department of Labor for U.S. for All Items with Base
Years 1982-1984=100. Those increases will be measured applying the twelve (12) month period
ending in the month for which the most recent index results are available as of that anniversary of
the Effective Date.
Main SaaS Agreement Page 8
6.3 Reimbursable Expenses. If a Service Order and/or SOW permits reimbursement of expenses by
Customer ("Reimbursable Expenses"), Landis+Gyr will be reimbursed for those reasonable
expenses, at cost. In addition, if there are any system communication fees that are incurred by
Landis+Gyr (i.e. long distance charges), Landis+Gyr will invoice Customer monthly for the
communications fees,which Customer agrees to pay.
6.4 Taxes. Customer is exclusively responsible for the collection and remittance of all sales and use,
value added, duties,tariffs or other similar charges or taxes on the SaaS Services, other than taxes
based upon Landis+Gyr's income. All amounts set forth in an applicable Service Order/SOW are
exclusive of taxes and taxes are not included in the Fees. Applicable taxes payable by Customer
will be separately itemized of invoices sent to Customer.
7. Invoices. Invoices shall be issued monthly in arrears for(i)the monthly Service fees(ii) for time
and materials in a Statement of Work and(iii) Reimbursable Expenses based on expenses
incurred in the previous month. Fees for fixed bid SOW's shall be invoiced upon completion of
the milestone as set forth in the applicable SOW. If Customer validly disputes any invoiced
amount it shall pay the undisputed amounts and provide written notice of the basis of that dispute
to Landis+Gyr within thirty(30)days following delivery of that invoice.The parties will work
diligently, promptly and in good faith to resolve any such disputes.
8. Ownership and Restrictions.
8.1 Ownership of Customer Data. As between Customer and Landis+Gyr and its Subcontractors,
Customer is and will remain the sole and exclusive owner of all right,title and interest in and to all
Customer Data, including all Intellectual Property Rights relating thereto, subject only to the
limited license granted in Section 7.2.
8.2 Limited License to Use Customer Data.During the Term of this Agreement and subject to the terms
and conditions of this Agreement,Customer hereby grants Landis+Gyr a limited,royalty-free, non-
exclusive, non-transferable and non-sublicensable license to Process the Customer Data in the
United States as instructed by Customer or an Authorized User and solely as necessary to provide
the SaaS Services for Customer's benefit as provided in this Agreement.
8.3 Reservation of Rights.Nothing in this Agreement grants any right,title or interest in or to(including
any license under) any Intellectual Property Rights in or relating to, the Services, Landis+Gyr
Materials and Documentation or Third Party Materials,whether expressly,by implication,estoppel
or otherwise. All right, title and interest in and to the Services, the Landis+Gyr Materials and the
Third Party Materials are and will remain with Landis+Gyr and the respective rights holders in any
such materials.
Main SaaS Agreement Page 9
9. Confidentiality.
9.1 Confidential Information. From time to time during the Term of this Agreement, either Party (as
the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving
Party") non-public, proprietary, confidential information about its business affairs, products,
services, confidential intellectual property, trade secrets, third party confidential information,
source code and other sensitive or proprietary information in oral, written, electronic or other
intangible form marked or indicated as "Confidential" or"Proprietary" at the time of disclosure
(collectively,"Confidential Information").Confidential Information,however, shall not include:
(a) Information which is already generally available to the public; (b) Information which hereafter
becomes generally available to the public, except as a result of the direct or indirect action of the
Receiving Party in breach of this Agreement; (c) Information known to the Receiving Party or its
Representatives on a non-confidential basis prior to receipt by the disclosing party;(d)Information
that is independently developed without access to the Disclosing Party's Confidential Information;
and(e)Information disclosed under legal compulsion;provided,however,that prior to a disclosure
pursuant to an order or applicable law,the Receiving Party,to the extent permitted by law,promptly
provides the other party written notice of such proposed disclosure and reasonably cooperates with
the other party in its attempts to limit or prevent such disclosure.The Receiving Party shall use the
Confidential Information solely for the performance of this Agreement and shall not disclose or
permit access to Confidential Information other than to its Affiliates and its or their employees,
officers, directors, attorneys, accountants and financial advisors(including insurers) (collectively,
"Representatives") who: (a) need to know such Confidential Information for the performance of
this Agreement; (b) know of the existence and terms of this Agreement and (c) are bound by
confidentiality obligations no less protective of the Confidential Information than the terms
contained herein.These non-disclosure obligations shall survive the termination of this Agreement
and shall continue for a period of five (5) years thereafter. Information need not be marked
"Confidential" to be considered Confidential Information. "Confidential Information" includes
any Confidential Information disclosed prior to the effective date of this Agreement. Customer
Confidential Information shall also be deemed to include Customer Data regardless of marking or
indication and shall not be subject to the exceptions referenced above. Any subcontractor retained
pursuant to Section 2.6 shall adhere to this Section 8 as it regards to Confidential Information that
comes into its possession.
9.2 Safeguarding Confidential Information. The Receiving Party shall safeguard the Confidential
Information from unauthorized use, access or disclosure using at least the degree of care it uses to
protect its most sensitive information and no less than a reasonable degree of care. The Receiving
Party shall promptly notify Disclosing Party of any unauthorized use or disclosure of Confidential
Information and take all reasonable steps to cooperate with Disclosing Party to prevent further use
or disclosure. The Receiving Party will be responsible for any breach of this Agreement caused by
its Representatives.
9.3 No Rights in Confidential Information. Customer and Landis+Gyr hereby acknowledge and agree
that all Confidential Information of the other party shall remain the sole and exclusive property of
such other party and that the receiving party shall have no proprietary rights,title or interests therein
except as otherwise provided in this Agreement.
9.4 Termination. Upon termination for any reason, or at any other time that Customer or Landis+Gyr
demands, the other party shall promptly deliver and/or certify destruction of Confidential
Information, as appropriate, to the requesting party all Confidential Information (copies and
originals)of the requesting party as may be in the other party's possession or under its control.
9.5 Customer Data Exception.Notwithstanding the provisions of Section 8 or any other provisions of
this Agreement, none of the exclusions set forth in Section 8 apply to any Customer Data.
10. Data Security and Privacy.
Main SaaS Agreement Page 10
10.1 Without limiting Landis+Gyr's obligation of confidentiality as further described herein,
Landis+Gyr shall establish and maintain a data privacy and information security program ("Data
Security Terms"), including physical, technical, administrative, and organizational safeguards,
that is designed to: (i) ensure the security and confidentiality of the Customer Data; (ii) protect
against any anticipated threats or hazards to the security or integrity of the Customer Data; (iii)
protect against unauthorized disclosure,access to,or use of the Customer Data;(i)ensure the proper
disposal of Customer Data; and, (e) ensure that all employees, agents, and subcontractors of
Landis+Gyr, if any,comply with all of the foregoing,and which are:(y)no less rigorous than those
maintained by Landis+Gyr for its own information of a similar nature; (y) no less rigorous than
generally accepted industry standards, including ISO 27001 and 27002; and (z) required by all
applicable federal and state laws, rules and regulations relating to privacy, the protection of
personal Information and data protection laws and regulations (including without limitation
applicable security breach notification laws)(collectively"Data Privacy Laws").
10.2 The Data Security Terms implemented and maintained by Landis+Gyr pursuant to this Section 9
shall include, without limitation:
(a) User identification and access controls designed to limit access to Customer's Data to
authorized users;
(b) the use of appropriate procedures and technical controls regulating data entering
Landis+Gyr's network from any external source, including regular monitoring of security
device controls(e.g., firewalls, intrusion prevention system,etc.);
(c) the use of encryption techniques when Customer's Data is transmitted or transferred from
the RF Network into the hosted environment and when Customer's Data is at rest within
the System;
(d) physical security measures, including without limitation securing Customer's Data within
a secure facility where only authorized personnel and agents will have physical access to
Customer Data;
(e) operational measures, including without limitation processes designed to ensure the correct
and secure operations of information processing activities;
(f) periodic employee training regarding the security programs referenced in this Section; and
(g) periodic testing of the systems and procedures outlined in this Section, including regular
automated vulnerability scanning of infrastructure components with commercial scanning
tools, with tracked mitigation effort.
10.3 Unauthorized Access. Landis+Gyr will use commercially reasonable efforts to prohibit access to
Customer Systems, in whole or in part,whether through Landis+Gyr's Systems or otherwise.
10.4 Landis+Gyr Systems. Landis+Gyr will be responsible for the security, management and
maintenance of Landis+Gyr's information technology infrastructure, including all computers,
software, databases, electronic systems (including database management systems) and networks
used by Landis+Gyr on Landis+Gyr's systems to access the Customer Systems or otherwise in
connection with the provision of the SaaS Services.
11. Audit Rights
11.1 Landis+Gyr will procure from an independent third party,on at least an annual basis,a SOC 1 audit
as set forth in the American Institute of Certified Public Accountants Statement on Auditing
Standards for Attestation Engagements(SSAE)No. 18 and once available, SOC 2. Such audit will
cover Landis+Gyr's networks, systems and premises (collectively, the "Landis+Gyr Systems").
Landis+Gyr will provide Customer with the report of each such audit within five(5)business days
of report availability. Landis+Gyr will provide an annual report and bridge letter delivery schedule
Main SaaS Agreement Page I 1
no less than annually; including (i) whether the audit revealed any material vulnerability in the
Landis+Gyr Systems;and(ii) if so, the nature of each vulnerability discovered. If the audit reveals
one or more material vulnerabilities,Landis+Gyr will correct each such vulnerability at its sole cost
and expense and will certify in writing to Customer when it has corrected all such vulnerabilities.
Landis+Gyr will complete all vulnerability corrections within a commercially reasonable period of
time.
11.2 Customer, at its own expense, will be limited to auditing Landis+Gyr output and deliverables
against the applicable currently contracted scope of the services. Scope will not include provisions
already covered within SSAE18 audits.
11.3 Third Parties: If a third party conducts an audit on the Customers behalf, in no event shall such
third party be:(i)a competitor of Landis+Gyr;or(ii)an entity whose substantial business function
is not performing audits of service providers; provided however, that a government agency may
conduct such audit.
11.4 Notification of Intent to Audit: Customer will submit, and Landis+Gyr will receive, in writing, a
request for an audit at least 90 days prior to the commencement of same. The written request must
include a proposed scope for the audit. The Customer and Landis+Gyr must mutually agree upon
the final scope of the review. The actual audit will be conducted at the times and locations
acceptable to Landis+Gyr.
11.5 Frequency and Duration: Customer shall be permitted to perform one audit per calendar year with
a maximum duration of two (2) business days, or other time frame mutually agreed upon by the
parties. All fees and expenses incurred by Customer for this audit are paid by Customer.
11.6 Non-Disclosure: Prior to the commencement of any audit,Customer/Customer auditors must enter
into Landis+Gyr's standard non-disclosure agreement.
11.7 Use of Audit Software: Landis+Gyr will not permit Customer/Customer auditors to install any
audit/test software on any Landis+Gyr system or use it to test any Landis+Gyr network, database,
file, or hosting center.
11.8 Actions Subsequent to the Audit: Landis+Gyr will be provided with a written report of findings
and recommendations from the audit. Landis+Gyr is under no obligation to implement any changes
in its controls or practices resulting from the audit. Landis+Gyr alone will determine what, if any,
corrective actions will be taken.
11.9 Access to Other Customers Information: Customer and/or Customer auditors will not be permitted
to access,view,or summarize other customer's data or information.
11.10 Copy and Removal of Documents from Landis+Gyr Premises: Customer will be permitted to
examine (at the Landis+Gyr location) manuals, written policies, reports, computer generated
listings, memorandum and other materials Landis+Gyr directly related to the scope of the audit in
progress. In general, Customer may not copy and/or remove such materials from Landis+Gyr
premises. Under certain circumstances, Customer may be permitted to remove such materials if
they pertain exclusively to that Customer and such materials would otherwise routinely be available
to Customer as a part of normal processing.
1 1.1 1 No Physical Access to Data Center: Customer shall not have access to shared hosting cages within
the co-located data center.
Main SaaS Agreement Page 12
12. Disaster Recovery.
12.1 Landis+Gyr shall maintain throughout the Term of this Agreement a disaster recovery plan and
business continuity plan that will enable Landis+Gyr to recover from a disaster and continue
providing the Services under this Agreement, within the recovery time objectives set forth in such
plan, or other recovery time objectives as mutually agreed to by the parties. Upon request,
Customer shall have the right to review a summary of Landis+Gyr's then current plan. Landis+Gyr
will test the operation and effectiveness of the plan at least annually. Upon request, Landis+Gyr
will provide Customer with an annual summary audit report for disaster recovery effectiveness. If
such tests reveal material deficiencies in the plan Landis+Gyr will respond with steps that will be
taken to mitigate recovery deficiencies within a reasonable time frame. Landis+Gyr reserves the
right to make the changes as required to the Disaster Recovery plan.
13. Information Security Incident Response.
13.1 In the event that Landis+Gyr confirms that the security of the System,or Customer Data,has been
compromised,or that such Customer Data has been or is reasonably expected to be subject to a use
or disclosure not authorized by this Agreement(an"Information Security Incident"),Landis+Gyr
shall: (i) promptly (and in any event within 24 hours of such confirmation Information Security
Incident), notify Customer, in writing, of the occurrence of such Information Security Incident per
the Landis+Gyr Global Security Incident Response plan;(ii)investigate such Information Security
Incident and conduct a reasonable analysis of the cause(s) of such Information Security Incident;
(iii) provide periodic updates of any ongoing investigation to Customer; (iv) develop and
implement an appropriate plan to remediate the cause of such Information Security Incident to the
extent such cause is within Landis+Gyr's control and to mitigate the effects of the Information
Security Incident; and (v) cooperate with Customer's reasonable investigation or Customer's
efforts to comply with any notification or other regulatory requirements applicable to such
Information Security Incident. In connection with an Information Security Incident, at Client's
request, Landis+Gyr will provide, effect or accept responsibility for the following (collectively,
"Mitigation Steps"): (a) investigate, remediate, and mitigate (1) the cause of the Information
Security Incident, and (2) the effects of the Information Security Incident; (b) provide the Client
with appropriate details of its remediation plan to help ensure that such Information Security
Incident will not recur; and (c) provide commercially reasonable assistance to enable Client to
notify public authorities or the individuals whose data were or may have been compromised.
14. Indemnification.
14.1 Landis+Gyr's Indemnification Obli atm. Landis+Gyr will indemnify and defend Customer and
its Affiliates and their respective officers, directors, employees, shareholders and members from
and against any losses, claims, penalties, fines, judgments, damages, liabilities or expenses,
including reasonable attorneys' fee ("Losses"), or threatened Losses arising out of third party
claims relating to, incurred in connection with, or based upon any claim, threatened claim, suit,
action or proceeding("Claim") made against Customer:
(a) that that the Services infringe any Intellectual Property Rights of a third party enforceable
in the U.S. ("Infringement Claim"); or
(b) any claim for bodily injury or death of any individual,or the loss,damage or destruction of
any real or personal property, resulting from the willful, negligent, reckless, fraudulent or
intentional acts or omissions of Landis+Gyr or its Subcontractor.
14.2 Indemnification Limitations. Landis+Gyr will have no liability or obligation for any Losses to the
extent that such Loss arises out of or results from any:
Main SaaS Agreement Page 13
(a) alteration or modification of the SaaS Services by or on behalf of Customer or any
Authorized User without Landis+Gyr's authorization (each, a"Customer Modification"),
provided that no infringement, misappropriation or other violation of third party rights
would have occurred without such Customer Modification and provided further that any
alteration or modification made by or for Landis+Gyr at Customer's request will not be
excluded from Landis+Gyr's indemnification obligations hereunder unless (i) such
alteration or modification has been made pursuant to Customer's written specifications and
(ii) the SaaS Services, as altered or modified in accordance with the Customer's
specifications, would not have violated such third party rights but for the manner in which
the alteration or modification was implemented by or for Landis+Gyr;
(b) Customer's access to or use of the SaaS Services that is expressly prohibited by this
Agreement or otherwise outside the scope of access or manner or purpose of use described
or contemplated anywhere in this Agreement,the Documentation or the applicable Service
Order; or
(c) breach of this Agreement by Customer or noncompliance herewith by any Authorized User.
14.3 Customer's Indemnification Obli ate, ions. To the extent provided by law,Customer will indemnify
and defend Landis+Gyr, its Subcontractors, Affiliates and such person's respective officers,
directors, employees, shareholder and members from and against Losses arising out of a Claim
made against Landis+Gyr relating to, incurred in connection with,or based upon:
(a) Customer's use of the SaaS Services in breach of this Agreement; or
(b) any Infringement Claim asserted by any third party based upon Customer materials
provided to Landis+Gyr;or
(c) any claim for bodily injury or death of any individual,or the loss,damage or destruction of
any real or personal property, resulting from the willful, negligent, reckless, fraudulent or
intentional acts or omissions of Customer.
14.4 Indemnification Procedures. The party seeking indemnification (the "Indemnified Party") will
promptly notify the other party("Indemnifying Party") in writing of any Claims for which it seeks
indemnification pursuant to this Section 13 and reasonably cooperate with the Indemnifying Party
at the Indemnifying Party's sole cost and expense. The Indemnifying Party will immediately take
control of the defense and investigation of such Claim and will employ counsel reasonably
acceptable to the other party to handle and defend the same, at the Indemnifying Party's sole cost
and expense. The Indemnifying Party will not settle any Claim on any terms or in any manner that
adversely affects the rights of the other party or any Indemnitee without the other party's prior
written consent, which will not be unreasonably withheld or delayed. The other party and any
Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel
of its own choosing. A party's failure to perform any obligations under this Section 13.4 will not
relieve the Indemnifying Party of its obligations herein except to the extent that the Indemnifying
Party can demonstrate that it has been prejudiced as a result of such failure.
14.5 Option. In addition to the foregoing indemnification obligations, if all or any part of the SaaS
Services is subject to an Infringement Claim, Landis+Gyr may, at its discretion and expense, take
the following actions:
(a) Procure for Customer the right to continue using the SaaS Services; or
(b) Modify or replace the allegedly infringing aspect of the SaaS Services to make it non-
infringing, provided, however, that such modification or replacement will not degrade the
operation or performance of the SaaS Services.
Main SaaS Agreement Page 14
(c) If neither of the remedies set forth in this Section 13.5 is reasonably available with respect
to the Infringement Claim features then Landis+Gyr may direct Customer to cease any use
of any materials that have been enjoined or finally adjudicated as infringing, provided that
Landis+Gyr will refund to Customer any prepaid Fees for SaaS Services that have not been
provided.
(d) Excluding the indemnity obligation owed by Landis+Gyr to Customer, the remedies set
forth in this Section 13.5 are Customer's exclusive remedies with respect to any
Infringement Claim.
15. Limitations of Liability.
15.1 EXCLUSION OF INDIRECT DAMAGES. EXCEPT WITH RESPECT TO A BREACH OF
CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE
RESPONSIBLE FOR ANY LOSSES OR DAMAGES THAT ARE INDIRECT,
CONSEQUENTIAL, PUNITIVE OR FOR EONOMIC LOSS, LOSS OF RVENUES, LOSS OF
PROFITS,OR LOSS OF BUSINESS OPPORTUNITY.
15.2 CAP ON DIRECT DAMAGES. EXCEPT WITH RESPECT TO A BREACH OF
CONFIDENTIALITY OBLIGATIONS, OBLIGATIONS UNDER THIS AGREEMENT
RELATED TO INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT,PESONAL INJURY
OR DEATH OR DAMAGE TO ANY REAL OR TANGIBLE PERSONAL PROPERTY
CAUSED BY EITHER PARTY'S NEGLIGENT ACTS OR OMISSIONS OR WILLFUL
MISCONDUCT, THE TOTAL LIABILITY OF EITHER PARTY IN RESPECT OF ALL
CLAIMS IN THE AGGREATE, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED
ON BREACH, CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES,
FAILIURE OF ESSENTIAL PURPOSE OR OTHERWISE, UNDER THIS AGREEMENT
SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO LANDIS+GYR DURING THE
TWELVE (12) MONTH PERIOD PRIOR TO ANY INCIDENT UNDER WHICH OR IN
RELATION TO WHICH THE LIABILITIY ARISES.
16. Representations and Limited Warranties.
16.1 Mutual Representations and Warranties.Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity as
represented herein under the laws and regulations of its jurisdiction of incorporation,
organization or chartering;
(b) it has,and throughout the Term and any Renewal Terms during which it does or is required
to perform the SaaS Services will retain,the full right, power and authority to enter into this
Agreement and perform its obligations hereunder;
(c) the execution of this Agreement by its representative whose signature is set forth at the end
hereof has been duly authorized by all necessary corporate/action of the party; and
(d) when executed and delivered by such party, this Agreement will constitute the legal, valid
and binding obligation of such party, enforceable against such party in accordance with the
Agreement terms, except as the enforceability thereof may be limited by bankruptcy and
similar Laws affecting creditors' rights generally and by general equitable principles.
16.2 Additional Landis+Gyr Warranties. Landis+Gyr represents, warrants and covenants to Customer
that:
(a) it is in the business of providing the SaaS Services;
Main SaaS Agreement Page 15
(b) it is the lawful licensee or owner of the SaaS Services (excluding any Customer Data
therein) and has all the necessary rights in the SaaS Services to grant the use of the SaaS
Services to Customer;
(c) the Service Software and Services will in all material respects conform to and perform in
accordance with the Documentation and all requirements of this Agreement;
(d) it will use its best efforts to ensure that no Disabling Code is introduced into Customer's
computing and network environment by the SaaS Services; and
(e) it will perform all Services in a timely, professional and workmanlike manner with a level
of care,skill,practice and judgment consistent with generally recognized industry standards
and practices for similar services, using personnel with the requisite skill, experience and
qualifications, and will devote adequate resources to meet Landis+Gyr's obligations under
this Agreement.
16.3 Additional Customer Warranty. Customer represents, warrants and covenants to Landis+Gyr that:
(a) Customer owns or otherwise has and will have the necessary rights and consents in and
relating to the Customer Data so that, as received by Landis+Gyr and Processed in
accordance with this Agreement, Customer does not and will not infringe, misappropriate
or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any
third party or violate any applicable Law.
(b) prior to Customer's delivery to Landis+Gyr of any Customer Data that is outside of the
Landis+Gyr Systems, Customer shall use current industry state-of-the-art anti-virus
measures to detect, prevent and remove Disabling Code, and to prevent the spread of
Disabling Code between the Parties when accessing and/or exchanging data or software
through the Interfaces or any other network connectivity.
16.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH IN SECTION 15.1, SECTION 15.2 AND SECTION 15.3, ALL SERVICES AND
LANDIS+GYR MATERIALS ARE PROVIDED "AS IS" AND LANDIS+GYR HEREBY
DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-
INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING,
USAGE OR TRADE PRACTICE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS
IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD
PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY
OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
Main SaaS Agreement Page 16
17. Force Majeure.
17.1 Force Majeure Events. Neither party will be liable in damages or have the right to terminate this
Agreement for any reasonable delay or default in performing under this Agreement if such delay
or default is caused by conditions beyond the party's reasonable control, including without
limitation acts of God, natural disasters, war or other hostilities, labor disputes,civil disturbances,
governmental acts, orders or regulations or failures or fluctuations in electrical power, heat, lights,
air conditioning or telecommunications equipment (each of the foregoing, a "Force Majeure
Event"),provided that the non-performing party is without fault in causing such condition. Subject
to the party so delaying promptly notifying the other party in writing of the reason for the delay
and the likely duration of the delay, the performance of the delaying party's obligations, to the
extent affected by the delay, will be temporarily suspended during the reasonable period of time
that the cause persists,provided that if performance is not resumed within thirty(30)days after that
notice,the non-delaying party may by notice in writing immediately terminate this Agreement.
18. General Provisions.
18.1 Compliance with Laws/Export. The Parties will comply with all applicable Laws, regulations and
codes, including procurement of permits and licenses, when needed, of their respective states,
territories,and/or countries in the performance of this Agreement,provided such is not in violation
of the U.S. Government's Export and Anti-boycott Rules and Regulations. The SaaS Services and
Deliverables and related technical information, documents and materials are subject to export
controls under the U.S. Export Administration Regulations and other applicable laws. Customer
will(a)comply strictly with all legal requirements established under these controls; (b)cooperate
fully with Landis+Gyr in any audit or inspection that relates to these controls; and (c) not export,
re-export, divert or transfer, directly or indirectly, any such item to any country or person who or
which is embargoed by Executive Order or any applicable law, including any rules, regulations or
policies promulgated thereunder.
18.2 Further Assurances. Each party will, upon the reasonable request,and at the sole cost and expense,
of the other party, promptly execute such documents and perform such acts as may be necessary to
give full effect to the terms of this Agreement.
18.3 Relationship of the Parties. The relationship between the parties is that of independent contractors.
Nothing contained in this Agreement will be construed as creating any agency, partnership,joint
venture or other form of joint enterprise,employment or fiduciary relationship between the parties,
and neither party will have authority to contract for or bind the other party in any manner
whatsoever.
18.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications
hereunder, other than routine communications having no legal effect, will be in writing and
addressed to the parties as follows (or as otherwise specified by a party in a notice given in
accordance with this Section):
If to Landis+Gyr:
Landis+Gyr Technology, Inc.
3000 Mill Creek Avenue, Suite 100
Alpharetta, GA 30022
Attn: Legal Department
Facsimile: 678.258.1686
Main SaaS Agreement Page 17
If to Customer:
City of Aspen
130 S Galena St
Aspen, CO 81611-1975
Attn: Lee Ledesma
Facsimile: 970-920-5197
Notices sent in accordance with this Section 17.4 will be deemed effectively given: (a) when
received, if delivered by hand (with written confirmation of receipt); (b)when received, if sent
by a nationally recognized overnight courier(receipt requested);(c)on the date sent by facsimile
with confirmation of transmission), if sent during normal business hours of the recipient, and
on the next business day, if sent after normal business hours of the recipient; or(d)on the fifth
(5th)day after the date mailed, by certified or registered mail, return receipt requested, postage
prepaid.
18.5 Interpretation.For purposes of this Agreement:(a)the words"include,""includes"and"including"
are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive;
[and] (c)the words"herein,""hereof,""hereby,""hereto'and"hereunder"refer to this Agreement
as a whole; and all personal pronouns, whether used in the feminine,masculine, or neuter gender,
include all other genders and the singular will include the plural and vice versa. Unless the context
otherwise requires, references herein: (x)to Sections, Schedules and Exhibits refer to the sections
of,and schedules and exhibits attached to,this Agreement;(y)to an agreement,instrument or other
document (including this Agreement) means such agreement, instrument or other document as
amended, supplemented and modified from time to time to the extent permitted by the provisions
thereof,and together with all schedules and exhibits thereto;and(z)to a statute means such statute
as amended from time to time and includes any successor legislation thereto and any regulations
promulgated thereunder.The Schedules and Exhibits referred to herein will be construed with,and
as an integral part of,this Agreement to the same extent as if such Schedules and Exhibits were set
forth verbatim herein.
18.6 Headings. The headings in this Agreement are for reference only and will not affect the
interpretation of this Agreement.
18.7 Entire Agreement.This Agreement, including all Service Orders and other Schedules and Exhibits
and any other documents, agreements or instruments incorporated by reference herein, constitutes
the sole and entire agreement of the parties to this Agreement with respect to the subject matter
contained herein, and supersedes all prior and contemporaneous understandings and agreements,
both written and oral, and all subsequent oral understandings and agreements with respect to such
subject matter. In the event of any conflict between the terms of this Agreement and those of any
Schedule, Exhibit or other document, the following order of precedence will govern: (a) first, this
Agreement, excluding its Exhibits and Schedules; (b) second, the Exhibits and Schedules to this
Agreement as of the Effective Date;and(c)third, any other documents, instruments or agreements
incorporated herein by reference.This Agreement and all Service Orders take precedence over any
purchase order issued by Customer, which may be accepted by Landis+Gyr for administrative
convenience only.
18.8 Assignment. Neither party will assign or otherwise transfer any of its rights, or delegate or
otherwise transfer any of its obligations or performance, under this Agreement without the other
party's prior written consent, which consent will not unreasonably be withheld or delayed. Any
purported assignment, delegation or transfer in violation of this Section 14.8 is void. This
Agreement is binding upon and inures to the benefit of the parties hereto and their respective
permitted successors and assigns.
Main SaaS Agreement Page 18
18.9 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their
respective permitted successors and permitted assigns and nothing herein, express or implied, is
intended to or will confer on any other person or entity any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
18.10 Amendment and Modification; Waiver. This Agreement may only be amended, modified or
supplemented by an agreement in writing signed by each party hereto. No waiver by any party of
any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the
party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay
in exercising, any right, remedy, power or privilege arising from this Agreement will operate or be
construed as a waiver thereof; nor will any single or partial exercise of any right,remedy, power or
privilege hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
18.11 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable
according to Law, such invalidity, illegality or unenforceability will not affect any other term or
provision of this Agreement or invalidate or render unenforceable such term or provision. Upon
such determination that any term or other provision is invalid, illegal or unenforceable, the parties
hereto will negotiate in good faith to modify this Agreement so as to affect the original intent of
the parties as closely as possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the greatest extent possible.
18.12 Governing Law; Submission to Jurisdiction.
(a) This Agreement and all related documents, and all matters arising out of or relating to this
Agreement, are governed by, and construed in accordance with, the laws of the State of
Colorado,without regard to Colorado's conflict of laws principles.The Uniform Computer
Information Transactions Act does not have any application to this Agreement.
(b) Any legal suit, action or proceeding arising out of or related to this Agreement or the
licenses granted hereunder will be instituted exclusively in the federal courts of the United
States or the courts of the State of Colorado in each case located in Pitkin County,and each
party irrevocably submits to the exclusive jurisdiction of such courts in any such suit,action
or proceeding. Service of process, summons, notice or other document by mail to such
party's address set forth herein will be effective service of process for any suit, action or
other proceeding brought in any such court.
18.13 Equitable Relief. The Parties will be entitled to seek injunctive or other equitable relief whenever
the facts or circumstances would permit a party to seek equitable relief in a court of competent
jurisdiction.
18.14 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is
instituted or commenced by either party hereto against the other party arising out of or related to
this Agreement,the prevailing party will be entitled to recover its reasonable attorneys'fees,expert
witness fees and out-of-pocket and court costs from the non-prevailing party.
18.15 Limitations on Actions. No actions, regardless of form, arising from the transactions under this
Agreement, may be brought by either party more than two (2) years after the cause of action has
accrued.
18.16 Schedules and Exhibits. All Exhibits that are referenced herein and attached hereto, or are signed
by both parties on or after the Effective Date, are hereby incorporated by reference.The following
Schedules and Exhibits are attached hereto and incorporated herein:
Main SaaS Agreement Page 19
Schedule A Service Level Agreement
Schedule B Service Order; Pricing
18.17 Publicity. Notwithstanding any other provision of the Agreement, Landis+Gyr shall not, without
the Customer's prior written consent,publish any information pertaining to the Agreement,whether
during the term of the Agreement or thereafter. Nor shall the Customer, without Landis+Gyr's
prior written consent,publish any information pertaining to the agreement,whether during the term
of the agreement or thereafter. Consent from either party will not be unduly withheld.
18.18 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an
original, but all of which together will be deemed to be one and the same agreement and will
become effective and binding upon the parties as of the Effective Date at such time as all the
signatories hereto have signed a counterpart of this Agreement. A signed copy of this Agreement
delivered by facsimile, e-mail or other means of electronic transmission (to which a signed PDF
copy is attached) will be deemed to have the same legal effect as delivery of an original signed
copy of this Agreement.
18.19 Fund Availability. Financial obligations of the City payable after the current fiscal year are
contingent upon funds for that purpose being appropriated,budgeted and otherwise made available.
If the Agreement contemplates the City utilizing state or federal funds to meet its obligations herein,
the Agreement shall be contingent upon the availability of those funds for payment pursuant to the
terms of the Agreement.
IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed as of the
Effective Date by their duly authorized representatives.
Landis— + Technology, Inc. City of Aspen
By:
Name. Name: o f
Title: CvsT"M C_J+"i-moioN5 Title:��-_fr'i►-. �,_L„
Date: Date: v
Main SaaS Agreement Page 20
SCHEDULE A
SERVICE LEVEL AGREEMENT
Landis+Gyr shall provide Customer with Service Levels on the terms and conditions set forth in this
Schedule and the Software as a Service (SaaS) Agreement dated as of the Effective Date, by and between
City of Aspen and Landis+Gyr Technology, Inc. (the "SaaS Agreement"). All capitalized terms that are
not defined in this Schedule shall have the respective meanings given to such terms in the SaaS Agreement.
1. Definitions. For purposes of this Schedule the following terms have the meanings set forth below.
"Error"means any reproducible failure of the Service Software to operate in all material respects
in accordance with the Documentation and, to the extent consistent with and not limiting of the
Documentation, including any problem, failure or error referred to in the Service Level Table.
"Service Levels"means the defined Error severity levels and corresponding required service level
responses and response times referred to in the Service Level Table.
"Service Level Table" means the table set out in Section 2.4.
"Support Period"means the Service Order Term as set forth in the applicable Service Order.
2. Availability Requirement. Subject to the terms and conditions of the SaaS Agreement and this
Schedule, Landis+Gyr will use commercially reasonable efforts to make the SaaS Services
Available, as measured over the course of each calendar month during the Support Period and any
additional periods during which Landis+Gyr does or is required to perform any SaaS Services
(each such calendar month,a"Service Period"),at least 99.5% of the time, excluding only the
time the SaaS Services are not Available solely as a result of one or more Exceptions
("Availability Requirement"). "Available"means the SaaS Services are available and operable
for normal access and use by Customer and its Authorized Users over the Internet in material
conformity with the Documentation.
2.1 Exceptions.No period of SaaS Service degradation or inoperability will be included in calculating
Availability to the extent that such downtime or degradation is due to any of the following
("Exceptions"):
(a) Customer's misuse of the SaaS Services;
(b) failures of Customer's or its Authorized Users' Internet connectivity;
(c) internet or other network traffic problems other than problems arising in or from networks
actually or required to be provided or controlled by Landis+Gyr or its Subcontractor; or
(d) Customer's or any of its Authorized Users' failure to meet any minimum hardware or
software requirements set forth in the Documentation.
(e) Force Majeure Event
(f) Failure, interruption, outage or other problem with any software, hardware, system,
network, facility or other matter not supplied by Landis+Gyr pursuant to the SaaS
Agreement or this Schedule.
(g) Scheduled Downtime; or
SaaS Agreement Schedule A Page 1
(h) disabling, suspension or termination of the Services pursuant to Section 3.4 of the SaaS
Agreement.
3. Support Services. Landis+Gyr will provide SaaS Service maintenance and support services
(collectively,"Support Services")during the support hours throughout the Support Period in
accordance with the terms and conditions of this Schedule and the SaaS Agreement, including the
Service Levels and other Landis+Gyr obligations set forth herein.The Support Services are
included in the SaaS Services, and Landis+Gyr will not assess any additional fees, costs or
charges for such Support Services.
3.1 Support Service Responsibilities. Landis+Gyr will:
(a) respond to Support Requests in accordance with the Service Levels;
(b) provide responsive telephone or email support as set forth in Section 3.6.
(c) Provide online access to technical support bulletins and other user support information and
forums,to the full extent Landis+Gyr makes such resources available to its other customers.
3.2 Service Monitoring and Mana eg ment. Landis+Gyr will continuously monitor and manage the SaaS
Services to optimize Availability (defined herein) that meets or exceeds the Availability
Requirement. Such monitoring and management will include:
(a) proactively monitoring on a twenty-four(24)hour by seven(7)day basis all SaaS Services,
infrastructure and other components of SaaS Service security;
(b) if such monitoring identifies,or Landis+Gyr otherwise becomes aware of,any circumstance
that is reasonably likely to threaten the Availability of the SaaS Service,taking all necessary
and reasonable remedial measures to eliminate such threat and ensure Availability;
(c) if Landis+Gyr receives knowledge that the SaaS Service or any SaaS Service function or
component is not Available(including by notice from Customer pursuant to the procedures
set forth herein or in the applicable Service Order):
i. Landis+Gyr will confirm the outage by a direct check of the associated facility or
facilities;
ii. if Landis+Gyr's facility check in accordance with clause (i) above confirms a SaaS
Service outage in whole or in part: (A)notifying Customer pursuant to the procedures
set forth herein or in the applicable Service Order that an outage has occurred,
providing such details as may be available, including a Landis+Gyr trouble ticket
number, if appropriate, and time of outage; and(B)working all problems causing and
caused by the outage until they are resolved as Critical Service Errors in accordance
with the Support Request Classification set forth in the Service Level Table.
iii. Landis+Gyr will continuously maintain the SaaS Services to optimize Availability that
meets or exceeds the Availability Requirement. Such maintenance services will
include providing to Customer and its Authorized Users:
a. such updates, bug fixes, enhancements, new releases, new versions and other
improvements to the SaaS Services, including the Service Software, that
Landis+Gyr provides at no additional charge to Landis+Gyr's other similarly
SaaS Agreement Schedule A Page 2
situated customers. Specific upgrades are set forth in the applicable Service
Order; and
b. all such services and repairs as are required to maintain the SaaS Services or
are ancillary, necessary or otherwise related to Customer's or its Authorized
Users' access to or use of the SaaS Services, so that the SaaS Services operate
properly in accordance with this Agreement and the Documentation.
3.3 Scheduled Downtime. Planned maintenance and updates are not expected to exceed ten(10)hours
in a normal month. Landis+Gyr will use commercial reasonable efforts to provide Customer
advance notification (via email) of scheduled maintenance that is anticipated to involve system
unavailability of two (2) hours or more. Landis+Gyr will use commercially reasonable efforts to
notify Customer at least 48 hours (via email) in advance to schedule maintenance and updates
("Scheduled Downtime"). Landis+Gyr will use commercially reasonable efforts to perform
scheduled maintenance outside the hours of 7:00 AM— 7:00 PM Central Standard Time, Monday
—Friday.
3.4 Service Levels.
Response times will be measured from the time Landis+Gyr receives a Support Request until the
respective times Landis+Gyr has responded to that Support Request. Landis+Gyr shall respond to
all Support Requests within the following times based on Landis+Gyr's designation of the severity
of the associated Error, in accordance with the Table below, subject to the parties' written
agreement to revise such designation after Landis+Gyr's investigation of the reported Error and
consultation with Customer:
SaaS Agreement Schedule A Page 3
Service Desk Service Level Agreements:
Severity
Level of Definition Response Time Status Restoration Resolution
Incident
Critical Critical Business Impact— I Hour or Less Within 4-8 24 hours Next
Impacts multiple users and halts Hours Scheduled
or severely impacts the Release
division's ability to conduct
critical operations.
Postponement of any critical
interface file that can delay
Field Services, Billing and daily
critical activities.
Sianificant Business Impact— 4 Hours or Less 1 Business Day 7 days Next
High Impacts individual or small Scheduled
work group. Normal operations Release
may be degraded but can
continue.
Medium Some Business Impact— 1 Business Day 3 Business Next
Impacts individual or small Days Scheduled
work group. Normal operations Release
may be degraded but can
continue,and service response
may be delayed until a mutually
established future time. Issue is
informational in nature,a
request, suggestion or report.
No immediate remedial action is
expected.
Low Non-Business Impact— 2 Business Days 1 Business Next
Maintenance request,data Week Scheduled
requests, and non-critical Release
process enhancements.
Landis+Gyr will respond to and investigate any suspected Incident in the Software within the time
provided above. Resolution of such Incidents may take the form of a written response, supplementary
documentation, work-around,coding change, product patch,or other correctional aids,which
Landis+Gyr will provide to Customer. In order for Landis+Gyr to meet Responses Time outlined
above, customers should make contact via telephone to report Critical or High Incidents.
Should business requirements call for a more customized level of support, Landis+Gyr also offers
Premium Support packages, which include dedicated technical support, client management and
executive dashboard views to open technical views and more. Premium Support includes discounted
rates for additional Smart Grid service offerings as well. Pricing for Premium Support is based on an
agreed scope of work based on the options selected and can be quoted upon request.
SaaS Agreement Schedule A Page 4
3.5 Support Requests and Customer Obligations.
(a) Support Requests. Customer may request Support Services by way of a Support Request.
Customer shall classify its requests for Error corrections in accordance with the severity
levels classifications and definitions of the Service Level Table set forth in Section 3.4
("Support Request"). Customer shall notify Landis+Gyr of each Support Request by e-
mail, telephone or such other means as the parties may agree to in writing. Customer shall
include in each Support Request a description of the reported Error and the time Customer
first observed the Error.
(b) Customer Obligations. Customer will, by and through its employee or consultants provide
Landis+Gyr with:
L prompt notice of any Errors; and
ii. each of the following to the extent reasonably necessary to assist Landis+Gyr to
reproduce operating conditions similar to those present when Customer detected the
relevant Error and to respond to the relevant Support Request:
a. direct access to the Customer Systems and the Customer's files and personnel;
b. output and other data documents and information, each of which is deemed
Customer's Confidential Information as defined in the SaaS Agreement;and
c. such other reasonable cooperation and assistance as Landis+Gyr may request.
3.6 Service Desk Contact Information. Landis+Gyr shall provide Customer with access to the Service
Desk. Landis+Gyr's current Service Desk business hours are 7:00 AM to 6:00 PM Central Time,
Monday through Friday, excluding Landis+Gyr observed holidays (available upon request) and
weekends ("Business Hours"). In addition, emergency access to on-call personnel via
Landis+Gyr's Emergency Dispatch Service will be provided by Landis+Gyr from 6:01 PM through
6:59 AM, and 24 hours per day on weekends and holidays. Landis+Gyr shall provide advanced
troubleshooting,via telephone or e-mail,as deemed necessary by qualified Landis+Gyr personnel,
to resolve Customer issues.
3.7 Submission Method. Customer can contact the Service Desk through:
i. Telephone direct dial-in at 888.390.5733;
ii. Fax to 218.562.5530,or
iii. E-mail at solutionsupport.na@landisgyr.com
All contact information is subject to change and update by delivery of notice and by posting on the
Landis+Gyr Website at www.landisgyr.com.
4. Backup and Recovery. Landis+Gyr will conduct or have conducted at minimum, daily backups of
Customer Data and perform or cause to be performed other periodic backups(snapshots,
differential backups, etc.). At least one backup will be stored online(directly accessible)and one
full backup will be stored near-line. Both copies will be less than one week old and may be
overwritten as they are replaced with newer backups. Weekly backups are stored for a minimum
of one month. Monthly backups are stored off-site for a minimum of one(1)year.
SaaS Agreement Schedule A Page 5
5. Business Continuity and Disaster Recovery Protection. Landis+Gyr has an ongoing Business
Continuity("BC") program (that includes Risk Assessment)that covers its primary locations as
well as a Disaster Recovery("DR")program for restoring its data center operations. Landis+Gyr
uses industry best practices and exercises its DR program, (i.e. failing over its customer services
to an alternate datacenter with client verification) for an additional fee.
6. Communications. In addition to the mechanisms for giving notice specified in the SaaS
Agreement, unless expressly specified otherwise in this Schedule or the SaaS Agreement,the
parties may use e-mail for communications on any matter referred to herein.
SaaS Agreement Schedule A Page 6
SCHEDULE B
SERVICE ORDER; PRICING
SERVICE ORDER NO. I
This Service Order No. I is issued pursuant to the Software as a Service(SaaS)Agreement by and between
City of Aspen-("Customer")and Landis+Gyr Technology, Inc. ("Landis+Gyr")(the"SaaS Agreement")and
is a part of and incorporated into the SaaS Agreement. All capitalized terms that are not defined in this
Schedule shall have the respective meanings given to them in the SaaS Agreement. In the event of any conflict
between the body of the SaaS Agreement and this Service Order B,the terms of this Service Order will govern.
SCOPE OF SERVICE. Landis+Gyr shall provide Customer with access to Services on the terms and
conditions set forth in the SaaS Agreement. Landis+Gyr will provide Services that will enable Customer
to access the Service Software.
1. Service(s)Description
The Service Software provided to Customer consists of the following items:
® Gridstream Command Center RF
❑ Gridstream Command Center PLC
❑ Gridstream Command Center PLX
® Gridstream Advanced Security
2. SaaS Service Term
The initial term for this Service Order begins after Service Software installation upon verification of
Customer's ability to access and utilize the SaaS Services as provided herein and in the SaaS
Agreement and ends thirty-six(36) months thereafter(the"Initial Service Order Term").
Upon expiration of the Initial Service Order Term, this Schedule B shall automatically renew for
successive one (1) year periods (each a "Renewal Term" and together with the Initial Service Order
Term, the "Service Order Term"), unless a party provides the other party with written notice of its
intent not to renew this Service Order at least ninety(90)days prior to the expiration of the then current
term.
3. SaaS Service Fee
3.1 The Fee Schedule is determined by the total number of Endpoints deployed by Customer. The fee
for the Initial Service Order Term for the number of Endpoints set forth in Section 2 of this
Service Order(the "Initial Service Fee")payable by Customer to Landis+Gyr is a total of
$1,065.00 per month based on 7,100 deployed Endpoints.
Actual fee will be determined by the total number of Endpoints deployed by Customer, calculated
and billed on a monthly basis based on the fee schedule below and will include adjusted fees for
the total number of deployed devices on the last business day of the previous month as indicated
by the Command Center Software.
SaaS RF Mesh IP Command Center(hosting)Pricing-SQL
Minimum Monthly Fee $950.00
Number of Deployed Endpoints Month l Fee Per Endpoint
First 10,000 $0.15
Next 10,001 —50,000 $0.12
3.2 The Fee Schedule for Gridstream Advanced Security is$5,400.00 per month($64,800.00 annually)
based on 7,100 Endpoints.
SaaS Schedule B - Service Order 1 —Command Center RF - Page I
3.3 The fees for the Renewal Terms of SaaS Service are payable by Customer to Service Provider as
set forth in the SaaS Agreement.
4. Price Increases
Landis+Gyr's Additional Endpoint Fees are fixed during the Initial Term. Landis+Gyr Additional
Endpoint fees for Renewal Terms shall escalate annually as of each anniversary of the Effective Date
of the Service Order by the amount of the increase in the Consumer Price Index—All Urban Consumers
of the Bureau of Labor Statistics of the U.S. Department of Labor for U.S. for All Items with Base
Years 1982-1984=100. Those increases will be measured applying the twelve (12) month period
ending in the month for which the most recent index results are available as of that anniversary of the
Effective Date.
5. Summary of Services Included in Service Order
SaaS Services are detailed in the SaaS Agreement. Services specific to this Service Order are detailed
below:
5.1 Project Coordination. Landis+Gyr will provide a project coordinator to provide direction to
Customer relating to SaaS Services. Customer to provide primary point of contact to work with
the project coordinator.
5.2 Installation and Configuration. Installing the Software in the data center with standard
configurations. Custom configurations are available for an additional fee as detailed in an
applicable SOW. Service Software includes Landis+Gyr Application Software, operating system
software,database software and any software running on the Landis+Gyr equipment.
5.3 Upgrades. Landis+Gyr and Customer will mutually agree on an upgrade schedule for Service
Software. SaaS Services include at least one(1) Software Upgrade per calendar year. Customer
agrees to remain on a Supported Release of Service Software. Landis+Gyr will install all
Software Upgrades on the Landis+Gyr Equipment. Service Software includes Landis+Gyr
Application Software,operating system software, database software and any software running on
the Landis+Gyr Equipment. Software DOES NOT INCLUDE any application or tools software
running on local Customer computers or other Customer equipment including Mobile
Administration Software("MAS") upgrades to handheld devices, endpoint programming
software upgrades at the Customer site, Endpoint Test Manager("ETM"), RadioShop or
Substation Processing Unit Software Upgrades.
5.4 Integration(s). Landis+Gyr will provide integrations to third party systems for an additional fee
as detailed in the applicable SOW.
5.5 Data Availability. Landis+Gyr will make available on a live basis at least 90 days of Customer
Data. Data older than 90 days will be archived and available to Customer upon request(additional
fees may apply). Archive data will be retained for a minimum of one (1)year unless otherwise
mutually agreed upon. Additional data retention periods are available for an additional fee.
5.6 Monitor Network Gateway Communications(To the Extent Landis+Gyr is providing the
Backhaul Services).To the extent applicable,Landis+Gyr will monitor the status of system
communications. In the event of a fault during normal business hours if the communications fault
is a result of a Landis+Gyr Equipment failure, Landis+Gyr will resolve the communications fault.
If the communications fault is not the result of a Landis+Gyr Equipment failure, Landis+Gyr will
report the fault for resolution by Customer. In the event of a fault as a result of a Landis+Gyr
Equipment failure outside of normal business hours, Landis+Gyr will attempt to resolve the issue;
however, no notice of the event will be made to the Customer. Should Customer require
assistance with respect to communications to the system, after hours assistance is available as
described in Schedule A.
SaaS Schedule B - Service Order 1 —Command Center RF- Page 2
5.7 Process Network Gateway Communication Fees. Landis+Gyr will process and invoice for
communication fees as applicable.
6. Customer Responsibilities:
6.1 Conduct Network Gateway Field Maintenance. Customer will perform field maintenance work
on the Meters/modules and Network Gateway. This includes, but is not limited to, updating the
collector, ETM, RadioShop and other Field Tools software to the latest version.
6.2 Interface Billing data to Customer Billing System. Customer is responsible for executing the
Billing Extract file utilizing the functionality built into the Command Center Software and
loading it into Customer's billing system. Customer is also responsible for any exception
processing that is associated with endpoints that do not have billing data available for a particular
billing cycle window.
6.3 Provide Network Gateway Communication. Customer is responsible for purchasing and
physically maintaining all collector communications infrastructure as applicable.
6.4 Administer Login and Passwords. Customer is responsible for assigning security officer(s),
administering all Software logins and passwords,to provide Customer-selected configurations
and to maintain access rights for the Customer's employees.
6.5 Support Utility Consumer.Customer is responsible for handling all support for Customer's own
end-use consumers. Landis+Gyr will not provide any support regarding billing inquiries or any
other matter for end-use consumers.
6.6 Install and Upgrade Endpoint Programmer Software. Customer is responsible to load and
maintain Endpoint Programmer Software on desired hardware at Customer's location including
ETM, RadioShop and other field tools.
6.7 Loading Files. Customer is responsible for loading MMF(Meter Manufacture Files), IIF
(Interchange File Format)and CIF(Customer Information Files)files to Software.
6.8 Application Administration. Customer is responsible to provide Customer-selected configurations
and maintain access rights.
6.9 Application Operations. Customer is responsible to provide daily business operations of the
Software monitoring jobs; reporting; coordination of issues, etc.
6.10 IT coordination. Customer is responsible to coordinate management of interfaces to connected
Customer Systems.
6.11 UpUades. Customer is responsible to validate upgrades to Software.
6.12 No Collection or Storage . The SaaS Services under this Service Order does not collect nor
store personally identifiable information("PII"). Customer agrees that it will not send or provide
Landis+Gyr access to any PII, whether in data or any other form. Customer agrees to be fully
responsible for reasonable costs and other amounts that Landis+Gyr may incur relating to any
such information mistakenly provided to Landis+Gyr or the loss or disclosure of such information
by Landis+Gyr, including those arising out of any third-party claims. Should Customer
mistakenly provide PII to Landis+Gyr, Customer shall immediately notify Landis+Gyr in writing
in accordance with the notice provisions herein, and reasonably cooperate with Landis+Gyr to
take any mitigating actions deemed necessary to remove such PII from the Landis+Gyr Systems.
Should Customer wish to utilize PII, it shall enter into a separate Service Order for Landis+Gyr's
Meter Data Management System Service Software.
SaaS Schedule B - Service Order I —Command Center RF- Page 3
SCHEDULE B
SERVICE ORDER; PRICING
SERVICE ORDER NO. 2
This Service Order No. 2 is issued pursuant to the Software as a Service(SaaS)Agreement by and between
City of Aspen-("Customer")and Landis+Gyr Technology, Inc. ("Landis+Gyr")(the"SaaS Agreement")and
is a part of and incorporated into the SaaS Agreement. All capitalized terms that are not defined in this
Schedule shall have the respective meanings given to them in the SaaS Agreement. In the event of any conflict
between the body of the SaaS Agreement and this Service Order B,the terms of this Service Order will govern.
SCOPE OF SERVICE. Service Provider shall provide Customer with access to Services on the terms
and conditions set forth in the Main Agreement. Service Provider will provide Services that will enable
Customer to access the Service Software.
1. Service(s)Description:
The Service Software provided to Customer consists of the following items:
Z SmartData Connect
2. Endpoints:
For the SaaS Service Fee stated below,Customer is authorized for up to 7,100 total Endpoints.
3. SaaS Service Term:
The initial term for this Service Order begins upon Service Software installation and accessible to Customer
and ends 36 months thereafter(the"Initial Service Order Term").
Upon expiration of the Initial Service Order Term,this Schedule B shall automatically renew for successive
one (1) year periods (each a "Renewal Term" and together with the Initial Service Order Term, the
"Service Order Term"), unless a party provides the other party with written notice of its intent not to
renew this Service Order at least ninety(90)days prior to the expiration of the then current term.
4. SaaS Service Fee:
4.1 The fee for the Initial Service Order Term for the number of Endpoints set forth in
Section 2 of this Service Order(the "Initial Service Fee")payable by Customer to
Service Provider is$15,000.00 USD per year($1,250.00 per month) for the Initial
Service Order Term.
4.2 The fees for the Renewal Terms of SaaS Service are payable by Customer to Service
Provider as set forth in the Main Agreement.
SaaS Schedule B - Service Order 2 — SmartData Connect - Page 1
5. Additional Endpoints:
Additional Endpoints may be added to the Service Order for a fee of:
• SmartData Connect $1.00 per Endpoint per Year
Customer is required to add additional Endpoints prior to beneficial use of such additional Endpoints.
6. Fee Escalation
Service Provider's base SaaS Service Fee and Additional Endpoint Fees are fixed during the Initial
Term. Commencement of each Renewal Term, Service Provider base SaaS Service fee and Additional
Endpoint fees shall escalate annually by the amount of the increase in the Consumer Price Index—All
Urban Consumers of the Bureau of Labor Statistics of the U.S. Department of Labor for U.S. for All
Items with Base Years 1982-1984=100. Those increases will be measured applying the twelve(12)
month period ending in the month for which the most recent index results are available.
7. Summary of Services Included in Service Order.
SaaS Services are detailed in the SaaS Agreement. Services specific to this Service Order are detailed
below:
7.1 Project Coordination. Service Provider will provide a project coordinator to provide
direction to Customer relating to SaaS Services. Customer to provide primary point of
contact to work the project coordinator.
7.2 Installation and Configuration. Installing the Software in the data center with standard
configurations.
7.3 Upgrades. Service Provider and Customer will mutually agree on an upgrade schedule
for Customer Software. Services include at least one(1) Software Upgrade per calendar
year. Customer agrees to remain on a Supported Release of Service Software. Service
Provider will install all Software Upgrades on the Service Provider Equipment. Software
includes Service Provider Application Software,operating system software, database
software and any software running on the Service Provider Equipment.
7.4 Integration(s). Service Provider will provide integrations to third party systems as for an
additional fee as detailed in the applicable SOW. Service Provider will provide a
standard integration to Landis+Gyr Command Center Software as part of the services
agreement.
7.5 Data Retention. Service Provider will make available on a live basis at least 24 months
of data. After 24 months, Data will be archived and available to Customer upon request
(additional fees may apply). Archive data will be retained for a minimum of one(I)year
for a total of three(3)years of data available. Additional data retention periods are
available for an additional fee.
SaaS Schedule B - Service Order 2 —SmartData Connect - Page 2
8. Customer Responsibilities:
8.1 Administer Login and Passwords. Customer is responsible for assigning security
officer(s), administering all Software logins and passwords,to provide Customer-selected
configurations and to maintain access rights for the Customer's employees.
8.2 URL Selection. Mutually agree with Service Provider upon an internet URL for the
purpose of a web portal address to access the services.
8.3 Support Utiles Consumer.Customer is responsible for handling all support for its own
end-use consumers. Service Provider will not provide any support regarding billing
inquiries or any other matter for end-use consumers.
8.4 Application Administration. Customer is responsible to provide Customer-selected
configurations and maintain access rights.
8.5 Application Operations.Customer is responsible to provide daily business operations of
the Software monitoring jobs; reporting; coordination of issues,etc.
8.6 Functional Know-how.Customer is required to provide functional support services.
8.7 End User Training. Service Provider will provide remote initial end user training.
Customer is responsible to provide user training after initial training is completed.
Service Provider will provide end user training after initial training period based on the
rates published by the Service Provider training department. In the case of custom
training, Service Provider will provide training on an hourly basis per the Rate Card for
the applicable training SOW, plus expenses.
8.8 IT coordination. Customer is responsible to coordinate management of interfaces to
connected customer systems.
8.9 Computer Hardware. The Service Provider needs to transfer certain data from the
Customer's systems to the Service Provider's system. This requires that the Service
Provider install a data loader software program on the Customer's systems computer to
transfer this data.The Customer shall be responsible for supplying and maintaining all
computer hardware at its site where the data loader resides.The Customer's computer
hardware shall meet the following specifications; computer connected to the internet with
at least a 15 MB internet bandwidth capacity, internal computer storage of 12 GB ram,
and 150 GB disc space. Additionally,the Customer's computer must be accessible by the
Service Provider through secured internet connection.
8.10 Transfer File Specifications. The Customer shall provide the required data to the Service
Provider in accordance with the file specifications as provided.
8.11 Upgrades. Customer is responsible to validate upgrades to Software.
9. Data Ownership
Ownership of Customer Identifiable Data. As between Customer and Service Provider, Customer is
and will remain the sole and exclusive owner of all right, title and interest in and to all Customer
Identifiable Data, including all Intellectual Property Rights relating thereto, subject only to the limited
license granted under this Agreement. "Customer Identifiable Data"means all data which is used in
the identification of a Customer and linking it to the Customer Data.
SaaS Schedule B - Service Order 2 — SmartData Connect - Page 3
10. Disclosure of Software
The Customer shall not disclose or reveal any of the Software application's screens or text to anyone
other than its employees and its members and users as intended by this Agreement.
11. Security
Landis+Gyr shall cause its supplier to use commercially reasonable practices to prevent unauthorized
access to the restricted areas of the Application and any databases or other sensitive material
generated from or used in conjunction with the Application; and Landis+Gyr shall promptly notify
Customer of any known security breaches. Use of the Application shall be password protected. It
shall be Customer's responsibility to administer the use, distribution and security and of such
passwords. Customer shall immediately notify Landis+Gyr in the event that such passwords are
compromised or being used by unauthorized users.
SaaS Schedule B - Service Order 2 —SmartData Connect - Page 4
SCHEDULER
SERVICE ORDER; PRICING
SERVICE ORDER NO. 3
This Service Order No. 3 is issued pursuant to the Software as a Service(SaaS) Agreement by and between
City of Aspen_("Customer")and Landis+Gyr Technology, Inc. ("Landis+Gyr")(the"SaaS Agreement")and
is a part of and incorporated into the SaaS Agreement. All capitalized terms that are not defined in this
Schedule shall have the respective meanings given to them in the SaaS Agreement. In the event of any conflict
between the body of the SaaS Agreement and this Service Order B,the terms of this Service Order will govern.
SCOPE OF SERVICE. Service Provider shall provide Customer with access to Services on the terms
and conditions set forth in the Main Agreement. Service Provider will provide Services that will enable
Customer to access the Service Software.
1. Service(s)Description:
The Service Software provided to Customer consists of the following items:
0 SmartData Prepay(Pay As You Go)
2. Subscribers:
For the SaaS Service Fee stated below,Customer is authorized for up to 355 total enrolled users of the Pay
As You Go subscription("Subscribers").
3. SmartData Connect Service Required:
Customer must have current and active Service Order for SmartData Connect in order to use the Pay As
You Go service.
4. SaaS Service Term:
The initial term for this Service Order begins upon Service Software installation and accessible to Customer
and ends 36 months thereafter(the"Initial Service Order Term").
Upon expiration of the Initial Service Order Term,this Schedule B shall automatically renew for successive
one (1) year periods (each a "Renewal Term" and together with the Initial Service Order Term, the
"Service Order Term"), unless a party provides the other party with written notice of its intent not to
renew this Service Order at least ninety(90)days prior to the expiration of the then current term.
5. SaaS Service Fee:
5.1 The fee for the Initial Service Order Term for the number of Subscribers set forth in
Section 2 of this Service Order(the "Initial Service Fee") payable by Customer to
Service Provider is$23,080.00 USD per year($1,923.33 per month) for the Initial
Service Order Term.
5.2 The fees for the Renewal Terms of SaaS Service are payable by Customer to Service
Provider as set forth in the Main Agreement.
SaaS Schedule B - Service Order 3 — SmartData Prepay - Page 1
6. Additional Subscribers:
Additional Subscribers may be added to the Service Order in 50 subscriber increments for a fee of:
• SmartData Prepay(Pay As You Go)
o $0.00 per Subscriber per year for Subscribers 0-200(included in base fee)
o $36.00 per Subscriber per year for Subscribers 201-1,200
o $18.00 per Subscriber per year for each Subscriber over 1,200 Subscribers
Customer is required to add additional Subscribers prior to beneficial use of such additional
Subscribers.
7. Third Party Fees
Customer shall be responsible for payment of all third party fees including but not limited to credit card
processor set up fees,account fees,credit card transaction processing fees,financial institution fees and
financial institution transaction processing fees. Service Provider will use USAEPAY as the credit card
processor payment gateway.
8. Fee Escalation
Service Provider's base SaaS Service Fee and Additional Subscriber Fees are fixed during the Initial
Term. Commencement of each Renewal Term, Service Provider base Saas Service fee and Additional
Subscriber fees shall escalate annually by the amount of the increase in the Consumer Price Index—All
Urban Consumers of the Bureau of Labor Statistics of the U.S. Department of Labor for U.S. for All
Items with Base Years 1982-1984=100. Those increases will be measured applying the twelve (12)
month period ending in the month for which the most recent index results are available
9. Summary of Services Included in Service Order.
SaaS Services are detailed in the SaaS Agreement. Services specific to this Service Order are detailed
below:
9.1 Project Coordination. Service Provider will provide a project coordinator to provide
direction to Customer relating to SaaS Services. Customer to provide primary point of
contact to work the project coordinator.
9.2 Installation and Configuration. Installing the Software in the data center with standard
configurations.
9.3 Upgrades. Service Provider and Customer will mutually agree on an upgrade schedule
for Customer Software. Services include at least one(1) Software Upgrade per calendar
year. Customer agrees to remain on a Supported Release of Service Software. Service
Provider will install all Software Upgrades on the Service Provider Equipment. Software
includes Service Provider Application Software,operating system software, database
software and any software running on the Service Provider Equipment.
9.4 Inte rag tion(s). Service Provider will provide integrations to third party systems as for an
additional fee as detailed in the applicable SOW. Service Provider will provide a
standard integration to Landis+Gyr Command Center Software as part of the services
agreement.
9.5 Data Retention. Service Provider will make available on a live basis at least 24 months
of data. After 24 months, Data will be archived and available to Customer upon request
SaaS Schedule B - Service Order 3 — SmartData Prepay - Page 2
(additional fees may apply). Archive data will be retained for a minimum of one(1)year
for a total of three(3)years of data available. Additional data retention periods are
available for an additional fee.
10.1 Administer Login and Passwords. Customer is responsible for assigning security
officer(s), administering all Software logins and passwords,to provide Customer-selected
configurations and to maintain access rights for the Customer's employees.
10.2 Support Utility Consumer. Customer is responsible for handling all support for its own
end-use consumers. Service Provider will not provide any support regarding billing
inquiries or any other matter for end-use consumers.
10.3 Application Administration. Customer is responsible to provide Customer-selected
configurations and maintain access rights.
10.4 Application Operations. Customer is responsible to provide daily business operations of
the Software monitoring jobs; reporting; coordination of issues, etc.
10.5 Functional Know-how. Customer is required to provide functional support services.
10.6 End User Training. Service Provider will provide remote initial end user training.
Customer is responsible to provide user training after initial training is completed.
Service Provider will provide end user training after initial training period based on the
rates published by the Service Provider training department. In the case of custom
training, Service Provider will provide training on an hourly basis per the Rate Card for
the applicable training SOW, plus expenses.
10.7 IT coordination. Customer is responsible to coordinate management of interfaces to
connected customer systems.
10.8 Computer Hardware. The Service Provider needs to transfer certain data from the
Customer's systems to the Service Provider's system. This requires that the Service
Provider install a data loader software program on the Customer's systems computer to
transfer this data. The Customer shall be responsible for supplying and maintaining all
computer hardware at its site where the data loader resides. The Customer's computer
hardware shall meet the following specifications;computer connected to the internet with
at least a 15 MB internet bandwidth capacity, internal computer storage of 12 GB ram,
and 150 GB disc space. Additionally, the Customer's computer must be accessible by the
Service Provider through secured internet connection.
10.9 Transfer File Specifications. The Customer shall provide the required data to the Service
Provider in accordance with the file specifications as provided.
10.10 Upgrades. Customer is responsible to validate upgrades to Software.
11. Data Ownership
Ownership of Customer Identifiable Data. As between Customer and Service Provider, Customer is
and will remain the sole and exclusive owner of all right, title and interest in and to all Customer
Identifiable Data, including all Intellectual Property Rights relating thereto, subject only to the limited
license granted under this Agreement. "Customer Identifiable Data" means all data which is used in
the identification of a Customer and linking it to the Customer Data.
12. Disclosure of Software
The Customer shall not disclose or reveal any of the Software application's screens or text to anyone
other than its employees and its members and users as intended by this Agreement.
SaaS Schedule B - Service Order 3 — SmartData Prepay - Page 3
13. Security
Landis+Gyr shall cause its supplier to use commercially reasonable practices to prevent unauthorized
access to the restricted areas of the Application and any databases or other sensitive material
generated from or used in conjunction with the Application; and Landis+Gyr shall promptly notify
Customer of any known security breaches. Use of the Application shall be password protected. It
shall be Customer's responsibility'to administer the use,distribution and security and of such
passwords. Customer shall immediately notify Landis+Gyr in the event that such passwords are
compromised or being used by unauthorized users.
SaaS Schedule B - Service Order 3 —SmartData Prepay - Page 4
SCHEDULE B
SERVICE ORDER; PRICING
SERVICE ORDER NO. 4
This Service Order No. I is issued pursuant to the Software as a Service(SaaS) Agreement by and between
City of Aspen_("Customer")and Landis+Gyr Technology, Inc. ("Landis+Gyr")(the"SaaS Agreement")and
is a part of and incorporated into the SaaS Agreement. All capitalized terms that are not defined in this
Schedule shall have the respective meanings given to them in the SaaS Agreement. In the event of any conflict
between the body of the SaaS Agreement and this Service Order B, the terms of this Service Order will govern.
SCOPE OF SERVICE. Service Provider shall provide Customer with access to Services on the terms and
conditions set forth in the SaaS Agreement. Service Provider will provide Services that will enable
Customer to access the Service Software.
1. Service(s)Description
The Service Software provided to Customer consists of the following items:
® Streetlight Controller Management System
2. SaaS Service Term
The initial term for this Service Order begins after Service Software installation upon verification of
Customer's ability to access and utilize the SaaS Services as provided herein and in the SaaS
Agreement and ends twelve(12)months thereafter(the"Initial Service Order Term").
Upon expiration of the Initial Service Order Term, this Schedule B shall automatically renew for
successive one (1) year periods (each a"Renewal Term" and together with the Initial Service Order
Term, the "Service Order Term"), unless a party provides the other party with written notice of its
intent not to renew this Service Order at least ninety(90)days prior to the expiration of the then current
term.
3. Availability for Streetlight Controller Management Software
Notwithstanding Section 2 in Schedule A(Service Level Agreement),the Parties hereby agree that the
Availability Requirement for Streetlight Management Software will be 99.0%. For the avoidance of
doubt,the other elements of Section 2 and Section 2.1 will remain in effect.
4. SaaS Service Fee
4.1 The Fee Schedule is determined by the total number of Endpoints deployed by Customer. The fee
for the Initial Service Order Term for the number of Endpoints set forth in Section 2 of this Service
Order (the "Initial Service Fee") payable by Customer to Service Provider is a total of$500.00
USD per month ($6,000 USD per year) based on up to 1,500 Endpoints. Actual fee will be
calculated and billed on a monthly basis and include adjusted fees for the total number of Endpoints
in the "deployed" status on the last business day of the previous month, as indicated by the
Command Center Software. The fees for the Renewal Terms of SaaS Service are payable by
Customer to Service Provider as set forth in the SaaS Agreement.
SaaS Schedule B — Service Order 4 - Advanced Outage Detection - Page 1
SaaS Streetlight Controller Management Solution SaaS Fees
_ Number of deployed Endpoints Monthly-fee per controller
Minimum Monthly Fee
includes up to 1,500_Endpoints) $500.00 per month
1,501 —5,000
(applies to the next 3,500 Endpoints) $0.35 per Endpoint per month
5,001 and greater
(applies to all Endpoints greater than 5,000) $0.30 per Endpoint per month
Customer is required to add additional Endpoints prior to beneficial use of such additional
Endpoints.
5. Price Increases
Service Provider's Additional Endpoint Fees are fixed during the Initial Term. Service Provider
Additional Endpoint fees for Renewal Terms shall escalate annually as of each anniversary of the
Effective Date of the Service Order by the amount of the increase in the Consumer Price Index—All
Urban Consumers of the Bureau of Labor Statistics of the U.S. Department of Labor for U.S. for All
Items with Base Years 1982-1984=100. Those increases will be measured applying the twelve (12)
month period ending in the month for which the most recent index results are available as of that
anniversary of the Effective Date.
6. Summary of Services Included in Service Order
SaaS Services are detailed in the SaaS Agreement. Services specific to this Service Order are detailed
below:
6.1 Project Coordination. Service Provider will provide a project coordinator to provide direction to
Customer relating to SaaS Services. Customer to provide primary point of contact to work with
the project coordinator.
6.2 Installation and Configuration. Installing the Software in the data center with standard
configurations. Custom configurations are available for an additional fee as detailed in an
applicable SOW. Service Software includes Service Provider Application Software, operating
system software,database software and any software running on the Service Provider equipment.
6.3 Upgrades. Service Provider and Customer will mutually agree on an upgrade schedule for
Service Software. SaaS Services include at least one(1) Software Upgrade per calendar year.
Customer agrees to remain on a Supported Release of Service Software. Service Provider will
install all Software Upgrades on the Service Provider Equipment. Service Software includes
Service Provider Application Software,operating system software, database software and any
software running on the Service Provider Equipment.
6.4 Integration(s). Service Provider will provide integrations to third party systems for an additional
fee as detailed in the applicable SOW.
SaaS Schedule B — Service Order 4 - Advanced Outage Detection - Page 2
7. Customer Responsibilities:
7.1 Conduct Network Gateway Field Maintenance. Customer will perform field maintenance work
on the Meters/modules and Network Gateway. This includes, but is not limited to, updating the
collector, ETM, RadioShop and other Field Tools software to the latest version.
7.2 Interface to Customer Systems. Customer is responsible for executing the extraction of data
utilizing the functionality built into the Streetlight Controller Management System and loading it
into Customer's systems. Customer is also responsible for any exception processing that is
associated with controllers that do not have data available.
7.3 Provide Network Gateway Communication. Customer is responsible for purchasing and
physically maintaining all collector communications infrastructure as applicable.
7.4 Administer Login and Passwords. Customer is responsible for assigning security officer(s),
administering all Software logins and passwords,to provide Customer-selected configurations
and to maintain access rights for the Customer's employees.
7.5 Support Utility Consumer.Customer is responsible for handling all support for Customer's own
end-use consumers. Service Provider will not provide any support regarding billing inquiries or
any other matter for end-use consumers.
7.6 Install and Upgrade Endpoint Programmer Software. Customer is responsible to load and
maintain Endpoint Programmer Software on desired hardware at Customer's location including
Tech Studio, ETM, RadioShop and other field tools.
7.7 Application Administration. Customer is responsible to provide Customer-selected configurations
and maintain access rights.
7.8 Application Operations. Customer is responsible to provide daily business operations of the
Software monitoring jobs; reporting; coordination of issues,etc.
7.9 Upgrades. Customer is responsible to validate upgrades to Software.
SaaS Schedule B — Service Order 4 - Advanced Outage Detection - Page 3
SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT
This Software Support and Maintenance Agreement (this "Agreement"), effective as of the last signature
date below ("Effective Date")by and between Landis+Gyr Technology, Inc. ("Landis+Gyr")and City of
Aspen("Customer")sets forth the parties' supplemental rights and obligations with respectto maintenance
and support for the Software licensed by Customer from Landis+Gyr, under the Master Purchase, License
and Services Agreement by and between Landis+Gyr and Customer dated also as of the Effective Date(the
"Master Agreement"). Defined terms used but not defined in this Agreement have the meaning given to
them in the Master Agreement or as defined below.
1. Definitions.
"Documentation"means any and all manuals, instructions,specifications and other documents and
materials that Seller provides or makes available to Customer in any medium and which describe
the functionality,components, features or requirements of the Software, including any one or more
of installation,configuration, integration,operation, use,support or maintenance thereof.
"Major Release" means any release of Software (for example, version 6.2) where the number to
the right of the decimal has been changed.
"Minor Release" or "Maintenance Release" means any update, upgrade, release or other
adaptation or modification of the Software,including any updated Documentation,that Landis+Gyr
may provide to Customer from time to time during the term,which may contain,among other things,
error corrections,enhancements, improvements or other changes to the user interface,functionality,
compatibility, capabilities, performance, efficiency or quality of the Software, but does not include
any New Version.
"New Version"means any new functional module of the Software that Landis+Gyr may from time
to time introduce and market as a distinct licensed product, and which Landis+Gyr may make
available to Customer at an additional cost via an amendment to this Agreement.
"Service Exception" has the meaning set forth in Section 7.
"Software Defect" means a reproducible failure of the Software to perform in substantial
conformity with the specifications set forth in the Documentation.
2. Maintenance Coverage; Term. "Maintenance" or "Support and Maintenance Services" will
consist of(i)the provision of certain Software Releases set forth in Section 5 of this Agreement, and
(ii) the Service Desk availability set forth in Section 3 of this Agreement for the fees set forth in
Exhibit A attached hereto. This Agreement will commence on the Effective Date and continue for
term of one (1) year. Landis+Gyr will provide Customer with any changes in support and/or
maintenance terms for renewal periods at least sixty (60)days prior to the expiration date.
3. Service Desk and Access.
3.1 Service Desk Hours. Landis+Gyr shall provide Customer with access to the Service Desk.
Landis+Gyr's current Service Desk business hours are 7:00 AM to 6:00 PM Central Time,
Monday through Friday, excluding Landis+Gyr observed holidays (available upon request)
and weekends ("Business Hours").In addition, emergency access to on-call personnel via
Landis+Gyr's Emergency Dispatch Service will be provided by Landis+Gyr from 6:01 PM
through 6:59 AM,and 24 hours per day on weekends and holidays. Landis+Gyr shall provide
advanced troubleshooting, via telephone or e-mail, as deemed necessary by qualified
Landis+Gyr personnel, to resolve Customer issues.
3.2 Submission Method. Customer can contact the Service Desk through:
(a) Telephone direct dial-in at 888.390.5733;
(b) Fax to 218.562.5530,or
(c) E-mail at solutionsupport.na@landisgyr.com
All contact information is subject to change and update by delivery of notice or by posting on the
Landis+Gyr Website at www.landisgyr.com.
4. Releases. During the warranty period and the period for which Maintenance has been purchased by
Customer and as part of Maintenance,Landis+Gyr will provide to Customer all Major Releases,Minor
Releases, and all critical maintenance Releases of the Software as available(plural or collectively,the
"Releases").All Releases shall be included in the definition of Software under the Master Agreement.
Such obligation is limited to Releases which Landis+Gyr generally releases to all its customers during
such time period. Customer is responsible for installation and integration of any Release, excluding a
Release relating to Infringement (which Release shall be the responsibility of Landis+Gyr), unless
Customer separately contracts with Landis+Gyr for hosting of the Software, or installation and
integration services therefor. Landis+Gyr will not be obligated or provide Maintenance if Customer
has not installed a Major Release(a Release within two versions of the then- current Major Release).
For example, if Landis+Gyr releases version 6.2 of the Software(where the number to the right of the
decimal indicates a Major Release), Landis+Gyr will provide Maintenance with respect to versions
6.2, 6.1 and 6.0. Landis+Gyr will not be obligated to provide Maintenance for any prior versions. For
avoidance of doubt, Software upgrades do not include new modules supporting additional functions.
4.1 Customer Service Alerts. Landis+Gyr will issue Customer Service alerts when necessary.
Landis+Gyr will make the most current user manuals available through a customer web
portal that will be provided to Customer at no additional charge.
5. Customer Responsibilities. Maintenance under this Agreement does not include and will not be
provided by Landis+Gyr to Customer to the extent Customer does not comply in all material respects
(to the extent applicable to the particular Software) with the following responsibilities of Customer:
(a) Ensure that the physical system environment, e.g., hardware requirements and
configurations,temperature,humidity, physical security, is within Landis+Gyr's recommended
parameters as specified in the Landis+Gyr recommended environments Documentation which
is provided to Customer prior to implementation.
(b) Check system operational logs for errors and verify that non-AMI network events are
excluded.
(c) Check file system for any corruption.
(d) Monitor disk space.
2
(e) Back up the Landis+Gyr application software and configure files on a regular basis
(weekly and monthly).
(f) As applicable, maintain system users' password control and network security at all levels.
(g) Investigate faults relating to the interconnection between the Software and the hardware
of the host system.
(h) Generate and monitor system statistics as recommended in writing by Landis+Gyr
during the project kick off meeting.
(i) Make available to Landis+Gyr a remote communication connection to the Software for
Landis+Gyr to provide remote system support.
0) Reasonably cooperate with and assist in Landis+Gyr's verification of Software Defects.
(k) Provide to Landis+Gyr all reasonable access to the location of the Software and the
host system hardware, including access to all relevant utilities, data communications
sources, and data. Access can be in the form of secure VPN, web conferencing, remote
access,or other secure access methodology as agreed by the parties in writing.
(1) When reporting a suspected Software Defect,Customer is obligated to:(A) ensure that
the use of the Software is in accordance with its Documentation; (B) use commercially
reasonable efforts to eliminate any third party hardware,any operating system software, and
any third party application software deficiencies; (C) capture all relevant data, reasonably
document the relevant operating conditions and other operating information, and supply
Landis+Gyr with reasonably requested diagnostic information in English; and (D)
implement mutually agreed upon remedial, corrective or work-around procedure(s) and
reasonably describe any limitations imposed by such corrections or workarounds that are
known to Customer.
(m) Once Customer completes its testing and validation procedures, Customer will
promptly install all Software provided by Landis+Gyr from time to time pursuant to this
Agreement within a reasonable time after receipt thereof provided that such Software is at
no additional cost to Customer. Customer will use reasonable efforts to notify Landis+Gyr
of any such installation of Software within a reasonable period of time after installation.
(n) Customer shall endeavor to notify Landis+Gyr of verified resolution or otherwise take
action within 10 Business Days of a shipment from Landis+Gyr with respect to a suspected
Software Defect.
6. Exclusions from Coveraee.
6.1 Matters Which Cause an Exclusion of Coverage. Support services does not include and
will not be provided with respect to any incident which is in part or whole caused by or
the result of any of the following(each a "Service Exception"):
(a) Any modification of the Software performed by any party other than (i)
Landis+Gyr or (ii) a third party approved in writing by Landis+Gyr in advance
which performs such modifications in accordance with the Documentation.
3
(b) Any use of the Software not in compliance with their Documentation.
(c) Any hardware, peripheral products, or software not provided by Landis+Gyr or the
interoperability of those products with the Software other than those contemplated
under the Agreement or the Documentation.
(d) Any defects, errors, deficiencies, or non-compliance in any hardware or any other
software used in connection with the Software, but not supplied by Landis+Gyr.
(e) Any other event not caused by Landis+Gyr.
6.2 Matters Excluded from Coverage. Maintenance is only provided as specified in this
Agreement. Any additional services are not included in Maintenance and will require other
agreements between the parties. The following services are not included in Maintenance:
(a) Design and configuration of the Software.
(b) System administration work that should be completed by Customer ' s system
administrator,as addressed in the applicable SOW or project kick off meeting.
(c) On-Site support.
(d) Delivery, license, or implementation of Software Releases other than those Releases
specified herein.
(e) Server hardware repairs and replacements.
(f) Advanced Signaling Certification and Maintenance. Certification (ANSIATU
compliance) and maintenance for SS7, ISDN, and future advanced signaling
protocols.
6.3 Reproducible Matters.Customer will promptly notify Landis+Gyr of a Software Defect. The
parties acknowledge that maintenance under Agreement (and any warranty services in this
Agreement with respect to the Software)may be difficult to provide unless a Software Defect
or alleged Software Defect is reproducible or verifiable by Landis+Gyr.
7. Additional Services. If Customer submits an incident and the cause of the problem is not a Software
Defect or not otherwise caused by Landis+Gyr, but results from some other cause (including without
limitation, from Customer's IP network or back-haul facilities),then such services of Landis+Gyr will
constitute Additional Services and Landis+Gyr may charge, and Customer will pay to Landis+Gyr,
fees and reimbursements of expenses for Landis+Gyr's services in connection with such incident at
Landis+Gyr' s time and materials services price list rates as agreed upon in a mutually acceptable
SOW.
8. Customer Escalation Contact Information and Flows. If Customer believes that it is not receiving
the proper responses under this Agreement, without waiving its other rights and remedies, Customer
may escalate the matter. At each level of escalation, Landis+Gyr and Customer will work in good faith
to resolve the issue. If after a reasonable time,considering the severity of the issue, without waiving
its other rights and remedies Customer is not reasonably satisfied with the Landis+Gyr response,
Customer may escalate the issue to the next level. The escalation levels and current contact
information are as follows:
4
Level 1 (for:PLC,MDMS,and AGA)As applicable
Manager,Customer Experience
Karen Brau -218-562-3886
karen.brau a,landisgy ry com
(for: RF, DA and ALM) As applicable
Manager, Customer Experience
Michelle Clark-678-427-1084
michelle.clarkO,Iandisgyr.com
Level 2 Sr. Director Customer Success
Thomas Wix- 770-314-0413
Thomas.wixallandisgyr.com
Level 3 Escalation Manager-Kamlesh Patel
678-258-3158(W)or 770-367-8344 (M)
Kam lesh.Patel Alandiseyr.com
Senior Software Manager- Pawan Gupta
678-258-1544(W)or 678-477-8302 (M)
Pawan.Guptaa,landisgyr.com
9. Limitation of Liability
9.1 No Consequential or Indirect Damages. IN NO EVENT SHALL EITHER PARTY OR ANY
OF ITS REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO THE OTHER
PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL
INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING WITHOUT
LIMITATION, LOSS OF BUSINESS, REVENUE OR PROFIT, ARISING OUT OF,
RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT,REGARDLESS OF
THE FORM OF ACTION UPON WHICH A CLAIM FOR DAMAGES MAY BE BASED,
WHETHER IN CONTRACT,TORT, STRICT PRODUCT LIABILITY,OR ANY OTHER
LEGAL OR EQUITABLE THEORY. THESE LIMITATIONS WILL APPLY EVEN IF
ANY LIMITED REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
9.2 Maximum Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE
LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER
ARISING OUT OF OR RELATED TO BREACH OF CONTRACT,TORT(INCLUDING
NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO
LANDIS+GYR PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH
PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.THE FOREGOING
LIMITATIONS SHALL APPLY EVEN IF THE NON-BREACHING PARTY'S
REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
9.3 Exceptions. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION
9 SHALL NOT APPLY TO DAMAGES OR LIABILITIES ARISING FROM:PERSONAL
INJURY OR DEATH OR DAMAGE TO ANY REAL OR TANGIBLE PERSONAL
PROPERTY CAUSED EITHER PARTY'S NEGLIGENT ACTS OR OMISSIONS, OR
WILLFUL MISCONDUCT.
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10. General
10.1 Complete Agreement. Modification and Assignment. The parties agree that this Agreement
and any ancillary agreements, exhibits or schedules constitutes the complete and exclusive
agreement between them with respect to its subject matter and supersedes all previous
understandings, negotiations, proposals, acknowledgements, and representations, whether
oral or written with respect thereto. No modification of this Agreement will be effective
unless it is in writing and signed by authorized representatives of Customer and Landis+Gyr.
Customer may not assign this Agreement, or its rights or obligations under them without the
express written consent of Landis+Gyr which shall not be unreasonably withheld. Any
exhibit attached hereto is incorporated herein by this reference.
10.2 Notices. Notices, other than routine communications having no legal effect, shall be in
writing and shall be sent by certified United States mail (return receipt requested), by
guaranteed overnight delivery, by courier, or by confirmed facsimile addressed to the
addresses set forth below:
For Customer: City of Aspen
130 S. Galena Street
Aspen, CO 81611-1975
Attn: Lee Ledesma
Facsimile No: 970-920-5197
For Landis+Gyr: Landis+Gyr Technology, Inc.
30000 Mill Creek Avenue, Suite 100
Alpharetta, GA 30022
Attn: Legal Department
Facsimile No: 678.258.1686
10.3 Force Majeure. Except for payment obligations, neither party is liable for failing to fulfill its
obligations due to acts of God, civil or military authority, war, riots, strikes, fire, or other
causes beyond its reasonable control.To the extent a party is substantially delayed by force
majeure from performing its obligations hereunder, such party shall give notice and details
of the force majeure to the other party as soon as practicable, then the parties may extend the
time for performance by written agreement. In the event it shall become impossible for
Landis+Gyr or Customer to perform its respective obligations because of force majeure,then
in such event the party so unable to perform may terminate this Agreement upon written
notice to the other. In no event shall an event of force majeure excuse or delay the payment
of any amount owed by one party to the other party under this Agreement.
10.4 No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement, and
no party otherthan Landis+Gyr and Customer shall have any legally enforceable rights under
this Agreement.
10.5 Headings. All headings used in this Agreement are for reference purposes only and are not
part of this Agreement.
10.6 Waiver; Severability. No delay or omission by Customer or Landis+Gyr in enforcing its
rights or remedies under this Agreement shall impair such right or remedy or be deemed to
be a waiver thereof. Any waiver, in whole or in part of any provision of this Agreement will
not affect be considered to be a waiver of any other provision. No waiver of this Agreement
shall be valid unless in writing and signed by the parties thereto. If any terni of this
6
Agreement is found to be unenforceable or invalid for any reason, such term shall not affect
the other provisions, but such unenforceable term shall be deemed modified to the extent
necessary to render it enforceable, preserving to the fullest extent permitted the intent of
Customer and Landis+Gyr set forth in this Agreement,and all other terms will remain in full
force and effect.
10.7 Independent Contractor. Nothing in this Agreement shall be read as appointing either party
as the agent or legal representative of the other party for any purpose whatsoever,nor shall
either party hold itself out as such. This Agreement does not create or is intended to create
any express or implied relationship of joint ventures, partners, employer and employee,
associates, or principal and agent between the parties, and both parties are acting as
independent contractors and principals for their own accounts. Neither party is granted any
right or responsibility for or on behalf of the other or otherwise to bind the other.In providing
the Maintenance, Landis+Gyr shall have sole responsibility for all persons employed by it in
connection with the performance of such Maintenance and, except as provided in this
Agreement,Landis+Gyr shall solely determine the methods,details,and means of performing
the Services.
10.8 No Personally Identifiable Information. Landis+Gyr software support specialists may
request that Customer send Landis+Gyr the problem information,systems data or test cases,
etc., or that Landis+Gyr support specialists be able to view it with Customer electronically.
To accomplish this, Customer may be offered several options by the Landis+Gyr support
specialist. Customer agrees that it will not send or provide Landis+Gyr access to any
personally-identifiable information ("PIT"), whether in data or any other form. Customer
agrees to be fully responsible for reasonable costs and other amounts that Landis+Gyr may
incur relating to any such information mistakenly provided to Landis+Gyr or the loss or
disclosure of such information by Landis+Gyr, including those arising out of any third-party
claims. Should Customer mistakenly provide PII to Landis+Gyr,Customer shall immediately
notify Landis+Gyr in writing, and reasonably cooperate with Landis+Gyr to take any
mitigating actions deemed necessary to remove such PII from the Landis+Gyr systems.
10.9 Governing Law. This Agreement shall be deemed to be a contract made under the laws of
the State of Colorado and shall for all purposes be construed and enforced in accordance with
Colorado law without regard to its conflicts of laws principles.
10.10 EEOC and Affirmative Action.
Landis+Gyr is in compliance with all of the laws and Executive Orders prohibiting
discrimination,including but not limited to Title VII of the Civil Rights Act of 1964
as amended,the Civil Rights Act of 1991,42 USC 2000(e),et seq.,and all applicable
state and local laws against discrimination.
Landis+Gyr and subcontractor, if any, shall abide by the requirements of 41 CFR
§§ 60-1.4(a),60-300.S(a) and 60-741.S(a).These regulations prohibit discrimination
against qualified individuals based on their status as protected veterans or
individuals with disabilities, and prohibit discrimination against all individuals
based on their race, color, religion, sex, or national origin. Moreover, these
regulations require that covered prime contractors and subcontractors take
affirmative action to employ and advance in employment individuals without
regard to race, color, religion, sex, national origin, protected veteran status or
disability.
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10.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original,and will become effective and binding upon the parties as of the
Effective Date.
10.11 Fund Availability. Financial obligations of the City payable after the current fiscal year are
contingent upon funds for that purpose being appropriated, budgeted and otherwise made
available. If the Agreement contemplates the City utilizing state or federal funds to meet its
obligations herein, the Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of the Agreement.
Acknowledged and agreed by the authorized representatives of the parties.
Landis+Gyr Technology,Inc. City o,fAs7en
By: �-- By: CJv
Name-.'--- �EL�L�ggC!-{ Name:
Title: 5, JS-TZKA� akiz4T7,)p�,Title: l�T
Date: Z z� I�` Date: 3 I l
8
Sofhvare Support and Maintenance Agreement
Exhibit A
Fees; Payment Terms
Invoice and Payment. Landis+Gyr will issue invoices to Customer for all amounts owed to Landis+Gyr
hereunder. Invoices for Services shall be issued yearly in advance. Payment is due within thirty (30) days
of the invoice date. Late payments will be subject to interest from the due date at the lesser of one percent
(I%)per month or the maximum rate allowed by law.
Annual Software Maintenance Fee
Description Annual Fee
Tech Studio Annual Maintenance(per license $220.00
Advanced Security Endpoint License Annual Maintenance Fee $1,420.00