HomeMy WebLinkAbout1991-073 Service Agrmt - ItronNovember 12, 1991
Ms. Karen Huckins
Supervising Accountant
City of Ashland
20 E. Main Street
Ashland, OR 97520
Dear Ms. Huckins:
Enclosed is one executed original of the End User License and Service
Agreement for the City of Ashland. Base Line product service charges
will be billed quarterly by Itron as indicated in Schedule A.
If you have additional questions about the Itron system, please do not
hesitate to call me at 1-800-338-8233. We look forward to working with you
in December.
Sincerely,
Clint McAuliffe
Marketing Manager
This Agreement is made this
hereinafter 'ltron', and
ITRON, INC.
SERVICE AGREEMENT
CONTRACT NO.
27 dayof Septembe~
The C~y-ot' ~sh±and
,19 ~ '[ , by and batween Itron, Inc., a Washington corporation,
., hereinafter 'Customer".
WHEREAS, Customer desires that ltrco p~ovide services fer the equipment and/er software listed on Schedule A, hereinafter the *Products', and
WHEREAS, Itree desires to provide cervices for the Preduds.
NOW, THEREFORE, in considemtine of the mutual covenants and agreements hereinafter set forth, ftren and Customer hereby agree as Inflows:
SECTION 1. ELIGIBILITY AND TERM OF AGREEMENT
Customer represents that It is the owner or licensee of the Products
serviced under this Agreement, or, if not the owner er licensee, has
aathority from the owner or licensee to include the Products under this
Agreement.
This Agreement shaJl be effective from the dale accepted by Itron and
shall remain in force for at least one (1) year after the warranty
expiration date on the initial Products, the 'Anniversary Date'. The one
(1) year period Item one Anniversary Date to the next Anniversary Date
shall be deemed the 'Aeniversar/Year'.
Either parly may, at any time alter the inlllz, I Anniversary Date, withdraw
Product models Item this Agreement upon ninety (90) days F'ior written
notice. When a Fmdect is withdrawn from this Agreement, the Customer
will receive credit lot any charges already paid for service beyeed the
date of withdrawal.
Alter the initial Anniversary Date, this Agreement may be terminated by
eithor pady upon ninety (90) days pder wTiMen notice.
SECTION 2. SERVICE
itren shat[ provide services, harelnelter *Service', to keep the Products
I~sted on Schedule A in good working order in accordance with the then
current applicable Ilron Service Policy. A copy of such Policy far the
lirst year of Service is attached hereto as Exhibit A. Service shall
include labor, paMs, tools, and test equipment neeessa7 fo,' the cervice
and support of the Prhducls being serviced. New or equivalent to new
standard pads shall be used in affecting repairs. Parts shall be
provided on an exchange bears and replaced Parts shall become the
property of Itren. Itrno shall have reasonable access to the Products to
provide service thereon.
SECTION 3. QUARTERLy CHARGES
Service cha~gas, as spedfied in Schhdule A for eanh Product and any
Pmdacts perchaced or licensed subsequent to the eflsc~ive date o{ this
Agreement, shall commence upon the expiration of the warranty period
for ~,[d Product. The qsade.'t7 char~ s,"~l b~ ~cr~ed ~ u~.cn
actual warranty expiration dates. Quarterly charges shall be levoicod
lhirly (30) days prior to the flint day of each calender quarter for which
Services are to be provided. All invoices for qnartedy charges shafl be
paid by Customer thirty (30) days from date ef receipt of invoice.
ltron may change the quarterly charge upon ninety (90) days prior
written notice. Any such adjusted rates shall become effective on the
date specified in tho notice and such change shall nct be effective prior
to the initial Annivemary Date. In no event shall the mlee be modified
mere than once dudng each Anniversary Year.
Changes requested by Customer, to Product specifications or
functionality, atlachmenls, er fealares, may result in an adjustment o! the
specified basic quaMefly charge.
There shall be no adrift[anal charge far travel expense associated with
Services performed except thet actual Iravel expose shafl be ch~ged
in those instances when the site at which the item is located is not
normally accessible by private automobile er scheduled public
transportation.
SECTION 4, TAXES
In additice to the charges due under this Agreemenl, Customer agrees
fo pay amounts equal to any taxes and duties resulting from this
Agreement, or any activities hereunder, exclusive of taxes based upon
ne{ income.
In the event Customer is a tax exomp'~ entity, Customer shall provide
ltron with a copy of its Tax Exemption Certify. ate upon execution of this
Agreement.
SECTION 2, ENGINEERING CHANGES
Engineering changes or software reJeasas, determined upplicable by
itree shall be controlled and p~ovided by itron at no additional charge to
Customer on Products covered by this Agreement.
~EC~FION 6. EARI,.Y TERMINATION
This Agreement is etfective lrom the date ee which it is accep~od by
ftren and will remain in effect until terminated at the option of either pady
as Fovided in Section 1 herein, or upon the occurrence of any of the
following:
fa) It a party becomes inceivent, executes an assignment for the
benofil of c~editors, or becomes subject to bankruptcy or
receivership proceedings.
(b) If a perly breaches a material provision of this Agreement, the
other party may give written entice of the breach. I! the
breaching party fails to make ~ogress to cure the breach to an
extent satisfactory lo the nonbreaching p~rty within thirty (30}
days, the nonbreaching p~dy may lerminate this Agreement
upon wr~en notice.
Upon the occurrence of such default, the other party may, at its option
and without notice fo or demand on the party in default, declare this
Agreement lerminated. Customer sh~l receive a c~edit far any charges
air,dy pa~ Icr Ser,;,ces beyo~ ~he dz~e o~ termination, however, in
the event of neepayment, all accrued charges shall become immodiately
due and Payable.
SECTION 7, GENERAL
fa) ~¢;)1~,~ ~nd Assienmenl. Neither party may sublease or assign
its rights or obligations under this Agreement without the written
c(mcenl of the uther party.
('o) Governino Law. This Agreement and podormance hereunder
shall be govarnod by and construed in accordance with the laws
of the State of Washington, U.S.A.
(c} FnforCeabilitv and Attorney Fees. If any provision in this
Agreement shall be hekl 1o be invalid, lliogal or uneeforceable.
the validity, legality and enforceability of Ihe remaining
provisions shall in no way be affected or impaired thereby. In
the event ol ~igatien lo erdorce the terms of Ihis Agreement, lho
3/1/91
13) At a party's option, upon ten 110) days written nnt~e
el termination, if the other p~ly becomes insolvent,
executes an assignment for the benelit of ~editom,
or becomes subject to b~nkruptcy or receivership
proceedings,
(b) Ri~hls and Obliaations Uoon Terlpination.
Upon terminalion of this Agreement:
11) End User's obligations under paragraph 2,5
{'Proprietary information") and the parties'
e61igatinns under paragraph 5.4 ('Confidentiality')
shall survive the termination;
12) End User's Software License rights under Secfiee 2
shall immediataly cease; End User shall delete the
Licensed Software from all othe~ software ~o which
it has been merged; and End User shall immed~ely
deliver to ftron or deslrey all co~es of the Ucensed
Software and Related Documentation; however,
End User may, upon ltron's prior w~tee ceesent,
retain erie (t) copy of the Licensed Software and
Related Documentation for archive purposes only;
and
(3) End User shall, within one 11} month afier the
termination of this Agreement, cudify in writing to
ftron that, to the best el End Users knowledge, all
copies of the Licensed Software and Related
Documentation have been returned or destroyed,
except lor any archive copy permitted under
paragraph 5.71b)12).
(c} Other Rinhls. Each party's right to terminate as
expressed in Ibis Agreement shall be in addition 1o any
other rights, legal or equitable, provided by law.
SECTION 6. GENERAL
6.1 ~:orce Maleur~. Neither party hereto shall be respona~e for
any lailure or delay in the pe~lormance el any obligation
hereunder if such I~lure or delay is due to a cause beyond the
party's central, including, but cot limifed to acts el God, flood,
fire, volceco, war, third,arty suppliers, labor disputes or
governmental acts.
6.2 ~ublease and ~,s~iqnmant. Neither paty may sublease or
assign its rights or obligations ur,der this Agreement withcul the
written consent of the other party.
6.3 ~_overnine La~. This Agreement and pedormance hereunder
shall be governed by and construed in accordance with the
laws of the St~e el Washinglon.
6.4 Enferceabililv and Attorney Fees. If any provision in Ibis
Agreemenl sheft be held lo be invalid, illegat or uonn[omeab[e,
the validity, legality and enforceabihty of the remaining
provisoes shall in no way be aflented or impaired Ihareby. In
the evenl o! litigation 1o enforce the terms el this Agreement,
the prevailing party shall be entitled to reasonable attorney
lees, Ix)Ih at Ihe time of t~'~ and rm appeul.
6.5 Qrmcerrent Remedies, No right or remedy herein conferred
upon or reserved to either party is exclusive et any other right
or remedy herein or by law or equity provided or permitted;
but each shall be cumulative o! every other right or remedy
given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise and may be enlorced
concurrently therewith or from time to time.
6.6 Hntices and Renuests. Notices hereunder shall be in writing
and shall be given by either party to Ihe other by dalivery or
by ma~ing the same by prepdd rngis~erad mail ad~ressad as
spedtied herein or to such ~thor address as may be
substituted by written no~e by either paty 1o the other:
E~ User. Notices to End User at
address provided below.
Itren: ITRON, INC.
E. 15616 Euclid Ave.
Spokane, WA 99216
Aftn: Contract Administrator
Any such notice so given shall be deemed to have been
received by Ihe party to whom addressed on the day of
delivery thereof.
6.7 Entire Aoreement. Each pady acknowledges that it has read
this Agreement, undemtands it, and agrees to be beond by its
terms and lurther agrees that it is Ihe complete and exclusive
statement el Ihe agreement between the parties. Any lerms
and ormditiorm appea'ing on End UseCs authorizstinns shall not
apply to or become a pad of this Agreumrmt; this Agreement
may be moditied or eitorad only by a written instmmant that
refers Io this Agreement and is duly executed by an authorized
representative of each party.
6.8 Headinas Hgt Confrollina. Headings used ia this Agreement
~e intended Ior convenience or relereuce only and shall not
control or alfec~ fhe meaning or cunslruction el any provision
of this Agreement.
iN WITNESS WHEREOF the parties hereto have signed this Agreement the day and year tirst eiTove written by their duly authorized
representative.
END USER:
By:
Title:
Address:
City of Ash] and ~RON,
~ East Main Street// Title:
Ashland, Or. 975~~
corporation, n~me the State in which incorporated
SCHEDULE A
BASE LINE PRODUCT SERVICE CHARGES
2.
3.
4.
5,
Description
500-0112-004 DataCap H 256K
610-0001-003 DCMU 300
510-0006-004 PC Interface Kit
500-0052-004 ECS 604
Software RDMS Encore Software
Total
Quarterly Price
$168.00
30.00
12.00
13.00
360.00
Total $583.00
ITRON, INC.
END USER LICENSE AND WARRANTY AGREEMENT
CONTRACT NO.
This Agreement, is made this 27 day el September , 19 91
Washington corporation, hereinafter 'ltren', and T h ~ 0 .i ~ y o f A s h 1 a n d
, by and between Itren, Inc., a
, hereinafter 'End
User'.
WHEREAS, Itrso is in the bes~nens of designing, manufacturing, [icenslag and selling electronic and computer preduds which are d'~rbuted to end
users by OTCom S~/stems~ Inc, hereinafter 'Dislributor';
VVHEREAS, Distribut~ intends to I~ovide such electronic and computer ixoducls to End User; and
WHEREAS, ftran requires End User lo execute this End Use' License and Wananty Agreement prior to delivery of the elec~roalc and computer
products to End User.
NOW, THEREFORE, ia coesideralion of the mutuaJ covenants and agreements hereinafter set leith, ftrce and End User hereby agree as ~lows:
SECTION 1. DEFINITIONS
When used herein, the following lerms, whether plural er singular, shal~
have the meaning set forlh below:
1.1 'Eouioment'. The components and devices designed and
manufactured by Ilren and provided to End User by
Distributor.
12 'Licensed Software'. The program products in machine-
readable form and all uther programs recorded an the media
Io he licensed to End User, including, but not limited Io:
fa) any form of itron written programming language source
code and machine-readable code derived from Ihe
source code er otherwise licensed to End User ~
(b) any subsequent modilisations, corrections er revisions to
the program products licensed to End User by ftron.
1.3 'Live Oeeration'. The point in time, after delivery and
installation el the System, when Distributor or ftron arrives on
site to trala End User's meter readers and PC ogera~om to use
the Equipmanl and licensed Software.
1.4 'Related Documentation'. Any human-readable program
listings, flow charts, input and oulput forms, manuals,
s~eciflcatians, iestruutions, and other mate~,is, and any copies
el any of the foregoing, in any medium, related 1o the
Equipment and/or Licensed Software and delivered 1o the End
User.
1.5 'System Seecificeflen D999mep1'. This document is produced
by Itron and contains a narrative and chart el the Licensed
Software flow, functional desc~'iptice el Licensed Software, a
definition of L~put and output file s~ruc~uros and record layouts
lacludiog the data definitions.
SECTION 2. THE LICENSED SOFTWARE
2.1 License. ftran hereby grants to End User a neeexolusive,
nontransferable, perpetual license Io use the Licensed
Software, including the Related Documentation.
2.2 ftron's Pronerly. The Licensed Software, including w~hout
limitation, programs, Related Documentation and methods el
processing, shall remain the sole and exolesive property of
Itran and sl~l not be soEl, revealed, disclosed or otherwise
communicated, directly or indirectly, by End User to any
Demon, company or institution whatsoever except as sol forth
herein.
2.3 Scoce of License. End User may use the Licensed Software
on hardware used or owned by End User. The Licensed
Software shall be used only lor the Ixsoessing el End Users
own business, which shall inolede eeo/icing and maintaining
records on behalf of its ~stomers. End User shall not: fa)
permit any Ihird party lo use the Licensed Software, (b) use
the Licensed Software in the eperatice of a sen4ce bureau, or
2.4
2.5
(c) reveme engineer, d~sassemble, med~, prepare derivative
wo~ks or otherwise ~er the Licans~ Software.
End User may, at its own expense, copy all er pad of Ihe
Related Documentation for its ialemat use. End User shall
reproduce and include any copyrigM er trade sea-et nntices
on any such copies.
Proarammino Laneuane. The Licensed Software is wr~en in a
specific programming language for use with operating syslem
software, itron shall not be rosi×msthio ler Ihe pedormanse ol
the Licensed Software la any uther programming language and
operating system combination not approved by ftron.
Proorietarv Information. In addition Io the rights and
obligations set forth in paragraph 5.4 herein, End User
acknowledges and agrees that the infermatkm coutaiced in the
Licensed Software and Related Documentation is predatory
or confidential folormation and is Ihe property of ftron (or
another party who has licensed to itron), and lhat the
proprietary iniormatice is being made available to End User by
limn in confidence and solely rm the basis of End User's
con~'~ent~ relationship with ftron. The proprlalary iniormatioa
is considered by ftran Io be a trade soerat of ftrce. End User
will not provide 0¢ otherwise make available any Licensed
Software or Relafed Dso~Jmsotation, in any form, except as
required by law or judicial or governmental order, without
itron's prior writlee consent, except to employees or
consultants of End User whose access to the information is
necessary to enable End User to exerdse its ~hts under this
Uceese.
SECTION 3, PAYMENT
End User ac{<nowledges that Distributor will provide payment to
Itron on End U.sar's behalf to provide consideration of Ibis
Agreement and that End User is the beeera::iary of such payment.
End User further understands that End User la reimbursing
Distributor Ior such payment an pert of End User's agreement for
obtaining the Equipment and Licensed Software.
SECTION 4. WARRANTY AND WARRANTY EXCLUSIONS
4.1 Warranty. ftron warrants that each item of Equipment wa he
free from delecls in material and workmanship and lhe
Licensed Software shall pedorm substantially in accor~nce
with the System Speciflcaiiee Document for a period of ninety
(90) days tro~ date of Live Operation.
ftron shall repair or provide an equivalenl replacemeni of any
item of Equipment and Uceesed Software deemed defecftve
at no charge to End User during this warranty period after
properly packaged and returned prepaid to itran's designaled
son/ice center. End User agrees to furnish Itrce reasonable
access to said Equipment and Licensed Sol, ware.
3/11/91 1
End User agrees that the above remedies are End User's
exclusive remedies in the event el breach of warrant)'.
THIS WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING RUT NOT LIMITED TO
IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
4.2 Warranty Exclusioq~. The wananties provided by Ilree under
this Agreement do not include the follewing se~, ~ if such
services are available, they can be provided by ftron under
this Agreement at Itron's then applicable time and malarial
charges and Iravel expenses.
(a) Repair of damage or ina-ease in sauce time mused by
lailure to continually provide a suitable installation
environment.
(b) Repair of damage or increace ia service lime mused by
the use of the System lot other than data processing
purposes let which dusigeed; or neglee~ or misuse.
(c) Repair of damage caused by accident or disa~ar, which
includes, but is not limited te lire, flood, submersion in
water, wind, l[ghte[ng, transportation subsequent lo
delivery, or Iorce roejeure.
(d) Inspection of altered Equipment, repair of damage or
increase in service tiroe caused by aiteralions not
authorized by itren, which alterations iadude, but are not
limited to, any deviation Irem ftron's physical, mechanical
or eleetricaJ Equipment design.
(e} Repair of damage or inc,'ease in service time mused by
the conversion lrom one ftren model to another or the
installation or removal of an Itren leature whenever any
el the laregoing was geHerroed I~y other than ~on or its
anthorized agents.
Service tiroa and materials associated with the
rearrangement or relocation of Equiproent.
5. RIGHTS AND OBLIGATIONS
5.1 ]nfdnneroent Indemnify. itron will indemnify, delaed end ho~d
End User harmless against a daJm that Equipment or Licensed
Soltware supplied hereunder infringes a U.S. potent,
copyright, trade secret or other proprietary properly right or
that the Equipmenrs operation pursuant Io a currant itron
release and modification level of any Licensed Software
supplied by ftron inlringes a U.S. patent, copyright, Irade
secret or other proprietay properly right, and firon will pay
resulting costs, damages and attorney lees finally awarded,
provided that:
(a) End User promptly nntifms itron in writing ef the claim; and
('o) Itron has sole control o! the defense and all related
settlement nogotiatioes.
itron's obi[gatien under this Section is conditioned en End
Users agreement that it the Equipment, or the operation
theranl, or the Licensed Soflware, becomes, or ia Itren's
opinion is likely Io becoroe the subject el such a c~m, End User
will permi~ firen, at ftron's option and expense, either Io
procure the right ler End User to continue esiag the Equipment
or Licensed Software or te replace or modify the same se that
they become noniafringing; such replacements or modifica~ioes
shait be lencfioca~ly equivalent to the Equipment and Licensed
Software; and if the Iorogoing alternatives are not available
on terms which are reasonable in liron's judgement, End User
will return the Equipment or Licensed Software on written
request to firen. Itren shall refund to End User the End User's
then book value of such returned Equipment and L~ensed
Software as depreciated.
SECTION
itron has no liability for any dalm based upon the combination,
operation or use el any Equipment er Licensed Software
suppfied hereunder with equipment or software not approved
by It[on, or based upon End Users alteratJen of the Equipment
or roocliflcafien of any Licensed Software supplied hereunder.
The leregning states the entire obligalion el itren with respect
to inlringement of patents, copyrights, trade secrets or other
proprietary properly.
5.2 Limilafion of Liability. IN NO EVENT SHALL ITRON BE
LIABLE, WHETHER IN CONTRACT, NEGLIGENCE,
TORT° OR ON ANY OTHER BASIS, FOR COVER OB
FOR INCIDENTAL, CONSEQUENTIAL OR
EXEMPLARY DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE SALE, MAINTENANCE, USE,
PERFORMANCE, FAILURE OR INTERRUPTION IN
THE OPERATION OF THE EQUIPMENT OR LICENSED
SOFTWARE.
5.3 Service After Warranty. ftren warrants that the Equipment
and Licensed Software are eligible lar service under Itron's
standard service agreement. The tee for sen'ice shall be al
hren's then prevailing rates. At End User's option, the service
agreeroent may commence on the date of expiration of the
initial warranty period lot the Equ{pment and/or Licensed
Software.
5.4 Conftdentiafitv. Except as required by law or judioiat or
goveremental order, ftron and End User agree to hold in
str;d~ cenridence ~ iafarroatidn and materi~J which is re.ed
te either party's ~siness, which is designated as ixopdetary
and cenlideot~ herein, or which is re.ed to Ibe periarmence,
by the petites el their obligations under this Agreement.
Proprietary and confidential ielormation includes, but is not
limited to the terms of this Agreement, info.nation related to
research, development, pricing, trade secrets, customer lists.
salaries or business affairs of the parties 1o this Agreeroent.
The partes' o~igatleas of canr,:lentiallty under this Agreement
shaft suwive termination el this Agreement.
5.5 ~oaloment or Licensed Software Modification. firon's
obligafioes hereunder may be adversely affected in the event
End User modirm, s the Equipment or Licensed Software or uses
any attachment, feature, or device on the Equipment, with~
first oblalning ltron's wr'~en approval.
5.6 Law Comnlience. firon shall coroply with provisions of the
Federal Fair Labor Standards Act and with all other applicable
federal, state and icceJ laws, rules, rogulatioes and ordinances
in the design, manufaoture, sale. pricing, delivery and
iuslal~fion el the Equipment and Lleansed Software, iadeding
all b~vs pmhbitiag disa-iminatlen ia employment, to Ihe extent
Ih~t such laws pertain to Itren.
5.7 l'e_~ md Termination.
(a) Termination. This End User License and Warranly
Agreement shall becoroe eflaotive upon execution by
firce and End User and may terminate:
(1) Thirty (30) days after a pafly gives the other party
written notice of that p~y's maerial breach of this
Agreement, unless the other party has made
progress in curing the breach to an extent
saisfacto~/to the nonbreaching parly;
(2) At a party's option, upen ten (10) days written sefice
el termination, upon any attempt by a party 1o
assign, delegate, sublicense or otherwise tmasler
this Agreement. the Licensed Software, the Related
Documentation, or any of its rights or obligations
under this Agreement without the prior written
consent of the other party; or
3/1 I/91 2
prevailing party shall be entitled lo reasonable altorney lees,
both at the lime ol thai and on appeal.
(d) Concurrent Remedies No right or remedy herein conferred
upon or reserved to either party is exclusive of any other right
or remedy herein or by law or equity provided or permitled; but
each shall be cumulative of every other dght or remedy given
bereunder or now o~' hereafter existing al law or in equity or by
stalute or otherwise and may be enforced concurrently
therewith or from time to time.
(e) Notices and Reouest~. Nutioes hereunder shell be in writing and
shall be given by either party Io the other by delivery or by
mailing the same by prepaid registered mail addressed as
specified below or to such other address as may be s~sliluted
by wdt~en notice by either party to lhe other:
Customer: Nctices to Customer at
address provided below.
itree: ITRON, INC.
E. 15616 Euclid Ave.
Spo~ne, WA 99216
Attn: Contract Administralor
Any such notice so given shall be deemed to have been
received by the pady to whor,1 addressed o,q lhe day of delivery
thereof·
(0 Entire Agreement. Each party acknowledges Ihet it has read
this Agreement, uederstands il, and agrees to be bound by its
farms and further agrees that il is the complete and exclusive
statement el the agreement belween the parties with respect lo
Services. Any lerms and conditions appearing on Customer's
authorizations shall not apply to or become a part et this
Agreement; this Agreement may be medihed or a~ered only by a
writlan instremanl lhat refers Io and incerperales this Agreement
and is duly executed by an authorized representative of each
party.
(g) ~-Ieedines No~ (~'pn~r~llinq. Headings used in thi~ Agreement are
intended for convenience o~ reference only and shall not control
or affect the meaning or conslruction of any provision of this
Agreement.
SECTION 8, SERVICES FOR ADDITIONA~ CHARGE
The services for additional cha,-ge described in this Section 8 are not
Services es descn~.~d in Section 2 a~ the Itron Service Policy. Such
services, if available, will be provided by ~ron under this Agreement al
Itron's then current rates for labor, maleriels, expeeses and shipping
costs, ~JI ~s applic~ie:
(a) paJnling or refinishing lhe Preducts or lumishing material lhereot;
(b) making Customer sponsored speci~icafiee dlanges; or adding or
removing aceeesohas, attachments or other devices;
(c) perlorming services connected with relocation of Products,
repair el damage resulting Item accident, lranspodation
subsequent to delivery, neglect, misuse or abuse, lack of
reasonable care, failure of electrical power, air cenditiening, or
humidity control, causes other than ordinary use, or failure or
malfunction of attached, related, collateral or ancillary
equipment nut covered by this Agreement;
(d) performing repairs if persons other than authorized Itron
representatives have altered the Products or have performed
malntananco or repair of the Products, and as a result, further
repair by Itrco is required.
SECTION 9, FORCI~ MAJEURE
Neither party hereto shall be respens~ble fo~' any failure or delay in the
performance of any obligalico hereunder if such failure or delay is due
to a cause beyond the pady's control, including, b~ not limited to acts of
God, flood, fire, volcano, war, thirdl)arty suppliers, labor disputes or
govemmentaJ acts.
SECTION 10, LIABILITy ~ND DISCLAIMER OF WARRANTy
IN NO EVENT SHALL rrRoN BE LIABLE, WHETHER IN
CONTRACT, NEGLIGENCE, TORT, OR ON ANY OTHER
BASIS, FOR COVER OR FOR INCIDENTAL, CONSEQUENTIAL
OR EXEMPLARY DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE SALE, MAINTENANCE, USE,
PERFORMANCE, FAILURE OR INTERRUPTION IN THE
OPERATION OF THE PRODUCTS.
ITRON OFFERS NO WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
IN WITNESS WHEREOF, the padies hereto have signed this Agreement Ihe
CUSTOMER: City of Ashland
Title: ' City Administrator /
Address: 20 East Main Str~t
Ashland, Or. 97520
day and year Emi above written by their duly authorized r~resentative.
Tax Exempt: No __ Yes X If yes, attach copy of Tax Exemp6ee Cedificate.
If a corporation, name the Stale or Province in which incorporated
EXHIBIT A
ENCORE BASE LINE SERVICE POLICY
ENCORE APPLICATIONS
Itron provides its Clients with a Base Line Support Policy, consisting of a twenty-four (24) hour
Client Service hotline service, on-going consulting services, complete record keeping and
documentation control, equipment services, and software services. Although primary support
service for third-party equipment and software is provided by the respective third-party vendors,
ltron provides problem determination through the Encore Base Line Service Policy.
The Client Account Analyst described in the following sections shall be an employee of In'on or of
another entity designated by Itron. ltron shall notify the Client of the designated Client Account
Analyst and In'on Service Center upon System installation.
Client Services
Client Account Analysts are available twenty-four (24) hours per day, seven (7) days per week via
a Client Service hotline. All Client requests of Itron should be focused through the dedicated
Client Account Analyst during normal working hours, 6:00 a.m. to 5:00 p.m. PST. For
emergency support outside of these hours, an answering service ensures that the client is put into
immediate contact with an available Client Account Analyst~
A response to a request or a plan for resolving the reported issue will be provided by the Client
Account Analyst within a twenty-four (24) hour period. The Client Account Analyst is
responsible for troubleshooting equipment and software, record keeping, service contracts, spare
part orders, status reporting, and problem resolution/escalation procedures. The Client Account
Analyst is the CY~ent's in-house spokesperson for Itron.
Phone consultations provide the Client with the ability to discuss such things as installation
instructions, equipment and software inquiries, operating procedures, modifications to the existing
System and other concerns that may arise. The Client has access to a team of trained
professionals, drawing upon the expertise not only of the Client Service group, but also any other
organization within la'on necessary to resolve a problem or address a concern.
All telephone contacts are documented to assist Client Account Analysts in tracking the issue or
problem (Problem Tracker), and the status is monitored until final resolution. The Client Account
Analyst maintains a log reflecting the current status of any outstanding equipment/software issues
and/or client requested modifications. These logs include problem reference numbers, date
reported, description, priority and scheduled release date.
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Software Services
Itron provides all of the labor and material necessary to maintain the software in accordance with
the System Specification Document. Software support services am furnished via Itron software
releases. Itron provides a warranty on all Itron-manufactured software supplied with the System.
At the end of the warranty period, the Encore Base Line Service Policy begins providing continued
on-going support.
All software issues or modification requests shall be reported through the Client Service hotline.
Once a problem is verified by Itron, it will be given to the Software Services groups for correction.
If a problem is not verifiable by Itron, the Client Service Rep may request additional documentation
or data from the client. During the period of time between major System releases, only problems
determined to be "critical" in nature will be acted upon immediately. "Critical" problems will be
defined as those that impact the collection or pass-ii,rough of data which uhimately affects
mainframe processing.
All modification requests made by the Client shall be submitted to Itron in writing. The requests
should include the appropriate modified pages from the System Specification Document, including
any marked-up report pages when applicable. If the modification is significant in size or scope,
Itron may elect to send a Client Account Analyst on-site to finalize the design of the modification.
The time and expense to complete the design is billable at applicable rates. All Client requested
modifications will be bid by Itron, prior to scheduling, at the applicable time and materials rate.
The modification bid shall include programming, documentation, testing and implementation for
the modification. Upon Client approval of the bid, the modification will be scheduled.
Any release of Itron software is accomplished through the transportation of magnetic media to the
client site. Included with the release will be the Problem Tracker or Modification description,
description of the change, documentation, and installation procedures. Full consultation may be
provided via the Client Service hotline to ensure proper installation. Once this software has been
released, it will become the new software base from which all future changes will be derive&
Itron maintains a current backup of all client related software, source code, and appropriate
documentation. If required, Itron can provide full software recovery within twenty-four (24)
hours of notification. Complete software contingency planning consulting services are available
from Itron at applicable time and expenses.
The Encore Base Line Service Policy excludes support of the following items:
1. Client modified software.
Third-party software installed by the Client not supplied by Itron or designated in the
System Specification Document
Any software changes required to integrate Third-Party software/f'mnware into the System,
requested by the Client, when such software is provided by the Client.
System corruption due to accident, misuse or negligence.
Software not included in the Service Agreement between Itron and the Client.
Communication problems related to Client supplied modems and/or telephone lines.
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Equipment Services
Itron provides ail labor and material necessary to maintain the equipment in accordance with the
System Specification Document. Equipment services and on-site critical problem resolution are
furnished via Itron designated Service Centers. Itron provides a 90 day warranty on ail Itron-
manufactured equipment supplied with the System. At the end of the warranty period for each
piece of equipment, the Encore Base Line Service Policy begins providing continued support
services.
Itron provides regionai Service Centers for expeditious service and turnaround of Client
equipment. Itron provides a seven (7) day in-house turnaround upon arrival at the Service Center
during normal business hours for handheld equipment. Up to a two (2) week in-house turnaround
time is provided for all other equiptnent. Service Center hours of operation arc Monday through
Friday, 8:00 a.m. to 4:30 p.m., excluding holidays. Regional Service Centers are located across
the country, accommodating the differing time zones. Shipping charges to and from the designated
Service Center will be borne by the Client. Return shipment will be in the same manner in which
received. If the need should arise to expedite the service and/or return shipment of services
equipment, a cail to the Client Account Analyst should be placed. The cost of the expedited service
shall be berne by the Client.
When the Client has procured the recommended handheld sparing levels for its System, Itron will
provide a handheld loaner service should the Service Center be unable to meet the seven (7) day in-
house turnaround. Handheld loaners will be provided for a maximum of ten (10) days without
charge. If handheld units are not returned to the Service Center within fifteen (15) days, the
published monthly rental charge will be assessed with a minimum one month charge.
Complete equipment contingency planning consulting services are available from liron at applicable
rates and expenses.
The Encore Base Line Service Policy excludes support of the following items:
1. Consumables: shoulder straps, holsters, hand strops, wrist straps, and keyboard overlays.
2. Physical damage resulting from accident, misuse, abuse or neglect.
Client sponsored specification changes; or adding or removing accessories, attachments or
other devices.
4. Damage or malfunction resulting from stationary equipment relocation by Client.
5. Damage resulting from failure of electricai power, air conditioning or humidity conmol.
6. Non-Itron supplied components and equipment.
The furnishing of supplies or accessories; painting or refinishing the equipment or
fumishing material thereof.
Performing repairs if persons other than authorized Itron representatives have altered the
products or have performed maintenance or repair of the products and as a result, further
repair by Itron is required.
o
Hardware or equipment not included in the Service Agreement between lu-on and the
Client.
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