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HomeMy WebLinkAbout18-Information Technology ORIGINAL CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION From: DEBRA KURITA, Subject: RESOLUTION OF THE MAYOR ACTING INFORMATION AND COMMON COUNCIL OF THE CITY OF TECHNOLOGY DIRECTOR SAN BERNARDINO AUTHORIZING THE EXECUTION OF A THREE YEAR Dept.: INFORMATION TECHNOLOGY AGREEMENT AND PURCHASE ORDER TO ESRI FOR A THREE YEAR ARCGIS Date: JUNE 2, 2010 ENTERPRISE LICENSE AGREEMENT. M/CC Meeting Date: June 21, 2010 Synopsis of Previous Council Action: none Recommended Motion: Adopt resolution. Signature Concur with Resolution: Economic Development Agency ` ' . - ._ 6 _ /- Signature Water Department 6 /'a/) Signature Contact person: Debra Kurita Phone: x3692 Supporting data attached: Staff Report, Resolution Ward: All FUNDING REQUIREMENTS: Amount: $54,500 in FY 2010/2011 $65,400 in FY 2011/2012 $76,300 in FY 2012/2013 Source: (Acct. No.) IT, EDA &Water Departments. (Acct. Description) Finance: Council Notes: ....10/0— X11 Agenda Item No. a/ /l� CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an agreement and the issuance of a purchase order to Environmental Systems Research Institute for a three year ArcGIS Enterprise License Agreement. Background: GIS is an information system technology with geography at its core foundation. This system provides technology and methods useful in integrating all of the factors that need to be considered for decision making. GIS improves the way we do our work by facilitating better decision making; saving money, time, and resources; and allowing us to more effectively communicate through geospatial visualization. The City's GIS is based on Environmental Systems Research Institute (ESRI) ArcGIS suite of software, which is an integrated collection of GIS software products that provides a scalable platform for spatial analysis, data management, and mapping. These systems were initially limited to use to specially trained GIS professionals; today, with the application of open Internet environments, all employees could access and work with the City's geospatial information. Unfortunately the City's GIS is limited to only the most basic of the web interfaces. With the current licensing format, extended staffs direct access to the City's geospatial information would require a substantial outlay. ESRI has proposed an "Enterprise License Agreement" (see attachment `A') that would provide the needed access for all employees. This agreement, unlike previous purchases, would allow access by all City departments including the Economic Development Agency and the Water Department to all of the available software of the ArcGIS software suite without additional cost. Environmental Systems Research Institute, located in Redlands, California is the developer and vendor of the software and services specified in the Enterprise License Agreement, and the sole source for said software and services. These services include telephone support, software and software upgrades, and are necessary to keep these critical systems running and up to date. Financial Impact: The ArcGIS Enterprise License Agreement as proposed by ESRI is a three year agreement with costs of: FY 2010/2011 of$54,500, FY 2011/2012 of$65,400 and FY 2012/2013 of$76,300 from the Information Technology GIS Program Maintenance Account (679-250-5172-0000-0059). The Economic Development Agency and Water Department will each be invoiced 1/3rd of the ELA charges each of the three years of the agreement. The yearly increase in cost is justified as the City will have access to the entire ArcGIS suite of software for a considerably smaller outlay of funds and will be increasing its use of the available software. The Water Department, EDA and the City have agreed to jointly and equally share funding and management of the license agreement. Account Budgeted Amount as of July 1, 2010 for FY 2010/2011: $ 58,680.00. Balance after approval of this item: $ 4180.00. Please note this balance does not indicate available funding. It does not include non-encumbered reoccurring expenses or expenses incurred but not yet processed. Recommendation: vM IytE��f Adopt resolution. / //((C - C [ \ dLi 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 3 SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND THE ISSUANCE OF A PURCHASE ORDER TO ENVIRONMENTAL SYSTEMS 4 RESEARCH INSTITUTE (ESRI) FOR A THREE YEAR ARCGIS ENTERPRISE LICENSE AGREEMENT. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 6 OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1: That the Director of Finance or his/her designee is hereby authorized 8 to issue an Annual Purchase Order to ESRI in an amount not to exceed $54,500.00 for Fiscal 9 1.0 Year 2010/2011, $65,400 for Fiscal Year 2011/2012 and $76,300 for Fiscal Year 2012/2013 11 for an ArcGIS Enterprise License Agreement. The Purchase Order shall reference the 12 number of this resolution and shall read, "ArcGIS Enterprise License Agreement, FY 13 2010/2011 not to exceed $54,500, FY 2011/2012 not to exceed $65,400 and FY 2012/2013 14 not to exceed $76,300" and shall incorporate the terms and conditions of this Resolution 15 including the attached agreement, a copy of which is attached hereto as Exhibit"A". 16 17 SECTION 2. That the City Manager of the City of San Bernardino is hereby 18 authorized to execute on behalf of said City an Agreement between the City of San 19 Bernardino and ESRI, a copy of which is attached hereto as Exhibit"A". 20 SECTION 3: This purchase is exempt from the formal contract procedures of 21 Section 3.04.010 of the Municipal Code, pursuant to Section 3.04.010(B)(3) of said Code, 22 "Purchases approved by the Mayor and Common Council". 23 SECTION 4: The authorization to execute the above-referenced Agreement and 24 25 issue the above-referenced Purchase Order is rescinded if not executed/issued within sixty 26 (60) days of the passage of this Resolution. 27 /1/ 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND THE 2 ISSUANCE OF A PURCHASE ORDER TO ESRI, FOR A THREE YEAR ARCGIS 3 ENTERPRISE LICENSE AGREEMENT. 4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting 5 thereof, held on the day of , 2010, by the following vote,to wit: 6 7 Council Members Ayes Nays Abstain Absent 8 MARQUEZ 9 DESJARDINS 10 BRINKER 11 SHORETT 12 13 KELLEY 14 JOHNSON 15 McCAMMACK 16 17 Rachel G. Clark, City Clerk 18 19 The foregoing resolution is hereby approved this day of , 2010 20 21 Patrick J. Morris, Mayor 22 City of San Bernardino 23 Approved as to form: 24 % 25 J. , . 'enman, City Attorney 26 27 28 RESOLUTION NO. Exhibit `A' ESRI ArcGIS Enterprise License Agreement EMI P�u � April 28,2010 Ms. Ruth Parish City of San Bernardino Information Services Department San Bernardino, CA Dear Ruth, As a follow up to our phone call on February 2nd regarding future purchases of ESRI software and maintenance,please find below a proposal for an Enterprise License Agreement(ELA) from ESRI. This proposal letter will cover pricing and key business terms for this type of agreement. The ESRI Enterprise License Agreement(ELA)with City of San Bernardino(the City)will be for three years and will grant the City unlimited access to the ESRI products listed below,including maintenance on all software covered under this agreement for the term of the agreement. The agreement will be effective on the date executed and requires a firm three-year commitment from the City. The City of San Bernardino has the reputation as a leader in GIS in the region and is looked upon as a leader in the deployment of technology and citizen services. Although the City has deployed a considerable amount of ESRI technology, ESRI's work with cities of similar size indicates that there is significant potential to apply GIS in many additional technical,business and market areas within the City of San Bernardino. For these reasons,we believe that the City of San Bernardino will greatly benefit from an enterprise license agreement. An ELA will provide the City numerous benefits including: • A lower cost-per-unit for licensed software • Substantially reduced administrative and procurement expenses • Maintenance on all ESRI software deployed under this agreement • Complete flexibility to deploy software products when and where needed. This program includes unlimited access by your organization during the term of this agreement to the ESRI Enterprise Software listed below.Licenses are valid for the three-year term of the agreement. • ArcGIS desktop software-ArcInfo,ArcEditor, ArcView • ArcGIS desktop extensions -3D Analyst, Spatial Analyst, Geostatistical Analyst,ArcScan, ArcGIS Publisher,Maplex,Network Analyst, ArcGIS Schematics,Job Tracking for ArcGIS (JTX) • ArcGIS server-based software—ArcGIS Server(Advanced, Standard,Basic/Enterprise& W orkgroup) • ArcIS Exhibit "A" • ArcGIS Server extensions-3D Analyst,Network Analyst, Spatial Analyst, Geostatistical,Schematics,Image,and Job Tracking for ArcGIS (JTX) • ArcGIS Engine Runtime deployments • ArcGIS Engine Runtime extensions—3D Analyst, Spatial Analyst, Geodatabase Update,Network Analyst,Arc Schematics and Maplex Also included in the program are: • Enterprise Software-ESRI Developer Network —One annual subscriptions to the ESRI Developer Network(EDN)for each year the ELA is in effect • Bing Maps: A maximum of 50,000 transactions per user, per year for all Desktop GIS software users (Additional transactions may be purchased via a subscription at then-current commercial pricing.An unlimited option may also be purchased separately.) • Virtual Campus (Web Training)— 10,000 dollars for standard ESRI—authored courses only (third-party authored courses not included) • Instructor-led training-Five percent discount on all commercially available courses at ESRI facilities Payment Terms for the ELA follow: 2010 2011 2012 Total Total Annual Fee S50,000 $60,000 $70,000 $180,000 All current departments, employees, and contractors of the organization will be eligible to use The software and services listed above. 2 The following key business terms and conditions will apply. • If your organization wishes to acquire and/or maintain ESRI software during the term of the agreement that is not included in this proposal,it may do so separately from this ELA at the ESRI pricing that is generally available for your organization for software and maintenance. • Software and services included in this proposal may only be deployed and used within the United States. • ESRI technology that may be embedded in third-party products that your organization licensed or may acquire is not included under this agreement. • The organization will establish a single point of contact for orders and deliveries and will be responsible for redistribution to eligible users. • The organization will establish a Tier 1 support center to field calls from internal users of ESRI software. The organization may designate up to six individuals who may directly contact ESRI for Tier 2 technical support. • ESRI will deliver two boxes of media • ESRI will provide up to 10 hardware keys, at no additional charge, upon your request. • The organization will provide an annual report of installed ESRI software to ESRI. • ESRI software updates that you are licensed to use will be shipped automatically as they become available. • The organization will act as an ESRI reference site and will permit ESRI to publicize its use of ESRI software and services. • The City of San Bernardino will work with an ESRI Press writer on a Press Release regarding their commitment to ESRI GIS technology and the intended use throughout the city . • The City of San Bernardino will develop and submit a presentation on the Value of GIS throughout the city at the 2011 Cal GIS conference or the 2011 CARO RUG. • The organization will receive five complimentary annual registrations to the ESRI International User Conference. • Subject to open records or public disclosure law, the details of this agreement will be confidential and may not be disclosed by the contracting parties. • ESRI reserves the right to adjust and collect sales and/or use tax at the actual date of invoicing. • Licenses are valid for the term of the ELA 3 To expedite your acceptance of this ELA offer: I.Sign and return the signature page of the ELA with a Purchase Order of issue a Purchase Order that references this ELA Quotation and includes the following statement on the face of the Puchase Order "THIS PURCHASE ORDER IS GOVERNED BY THE TERMS AND CONDITIONS OF THE ESRI ELA AND ANY DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS IN OR WITH THIS PURCHASE ORDER SHALL NOT APPLY."And have it signed by an authorized representative of the organization. 2. On the first page of the ELA, identify the central point of contact/agreement administrator.The agreement administrator is the party that will be the contact for management of the software, administration issues, and general operations. Information should include name,title if applicable, address, phone number,and e-mail address. 3. In the Purchase Order, identify the"Ship to"and"Bill to" information for your organization. 4. Send the Purchase Order and agreement to the address noted below: ESRI Attn: Customer Service 380 New York Street Redlands, CA 92373-8100 Or e-mail service()esri.com or fax documents to 909-307-3083 This proposal is valid for 30 days after the date received by the City of San Bernardino. ESRI and the City of San Bernardino have a long and rich history working together. I appreciate the opportunity to present you with this proposal;one that I believe will bring great benefits to your organization. Thank you very much for your consideration. Best regards, Jan Cunningham 4 4X., 4 ' ESRI Quotation # 20361600 Date: February 11,2010 tNVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. Customer#17639 Contract# ESRI,Inc. CITY OF SAN BERNARDINO 380 New York St INFORMATION TECHNOLOGY DEPT Redlands,CA 92373-8100 300 N D ST Phone: (909)793-2853 Fax: (909) 307-3025 SAN BERNARDINO, CA 92418 DUNS Number: 06-313-4175 CAGE Code: OAMS3 To expedite your order,please attach a copy of ATTENTION: Ruth Parish this quotation to your purchase order. PHONE: (909) 384-5947 Quote is valid from: 02/11/2010 To: 08/10/2010 FAX: 909-384-7236 Material Qty Description Unit Price Total 110037 1 Enterprise Term License Agreement-Year One 50,000.00 50,000.00 110037 1 Enterprise Term License Agreement-Year Two 60,000.00 60,000.00 110037 1 Enterprise Term License Agreement-Year Three 70,000.00 70,000.00 Item Total: 180,000.00 Subtotal: 180,000.00 Sales Tax: 16,200.00 Estimated Shipping&Handling(Surface Delivery): 0.00 Contract Pricing Adjust: 0.00 Total: $196,200.00 Please indicate on your purchase order if this purchase is funded through the American Recovery and Reinvestment Act,and whether ESRI is a Pnme Redpient,Sub-recipient,or Vendor for reporting purposes. Zuoted By: Tammy Pike, (909)793-2853 x3949 Account Manager: Jan Cunningham email: tpike @esri.com Email: junningham@esri.com Acceptance of this quotation is limited to the ESRI License Agreement and the Quotation Terms and Conditions This Quotation is made in confidence for your review.It may not be disclosed to third parties,except as required by law. if sending remittance, please address to: ESRI, File No. 54630, Los Angeles, Ca 90074-4630 PIKET I �1 ESRI ENTERPRISE LICENSE AGREEMENT w,4r,_, (E21412/08) ESRI,380 New York St.,Redlands,CA 92373-8100 USA•TEL 909-793-2853•FAX 909-783-5953 ESRI Contract number 2010ELA901 This Enterprise License Agreement(hereafter"ELA")is by and between the organization identified in the quotation ("Licensee")and Environmental Systems Research Institute,Inc. ("ESRI"),with offices at 380 New York Street,Redlands, California 92373-8100.This ELA is effective("Effective Date")as of the date of receipt of Licensee's Purchase Order citing this ELA.This ELA grants Licensee certain rights to use specific ESRI Software,Data,Web Services,and Documentation and provides maintenance over a limited,fixed period of time from the Effective Date subject to payment of fees and the terms of this ELA. This ELA is composed of(i)this signature page,(ii)the ELA Terms and Conditions,(iii)Exhibit 1—Scope of Use(E300), and(iv)the ELA Quotation,which together constitute the sole and entire agreement of the parties as to the subject matter set forth herein.Licensee agrees that any different or additional terms or conditions in or with any Licensee Purchase Order shall not apply and the terms of this ELA shall govern. This ELA supersedes any previous agreements,proposals,presentations,understandings, and arrangements between the parties relating to such subject matter,which is the licensing of the Enterprise Software.Except as provided in Section 9.1 Future Versions,any modifications or amendments to this ELA must be in writing and signed by an authorized representative of each party. Licensee may accept this ELA by signing and returning this ELA with a Purchase Order or by issuing a Purchase Order signed by Licensee,which shall reference the ELA and shall include the following statement on the face of its Purchase Order: "THIS PURCHASE ORDER IS GOVERNED BY THE TERMS AND CONDITIONS OF THE ESRI ELA# 2010ELA901,AND ANY DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS IN OR WITH THIS PURCHASE ORDER SHALL NOT APPLY." Licensee will return this ELA and its Purchase Order to: Attn.:ESRI Customer Service,Dept., 380 New York Street, Redlands,CA 92373-8100;e-mail to service@esri.com;or fax to 909-307-3083. ACCEPTED AND AGREED: CITY OF SAN BERNARDINO M PROVED AS TO FORMS (Licensee) James F.Penman, By' City Attorney Signature Printed Name: • By Title: Date: ; Licensee Contact Information Contact: Telephone: Address: Fax: City, State, ZIP: E-mail: ELA Quotation Number: ESRI Contract Number: Page 1 of 5 E214 12/08 ELA TERMS AND CONDITIONS reproduction, distribution, or publication. ESRI and its third-party licensors reserve all rights not specifically granted in this License ARTICLE 1—DEFINITIONS Agreement including the right to change and improve Web Services. Definitions.The terms used are defined as follows: ARTICLE 3—GRANT OF LICENSE • "Data" means any ESRI or third-party digital dataset(s) including, but not limited to, geographic vector data 3.1 Grant of License.Subject to the terms and conditions of this coordinates,raster,reports,or associated tabular attributes ELA, ESRI grants to Licensee a limited term, personal, licensed under this ELA. nonexclusive,nontransferable license solely to • "Deploy," "Deployed," or "Deployment" means to redistribute and install or the redistribution and installation a. Use, copy, and Deploy an unlimited quantity of the of the Enterprise Software or its having been redistributed Enterprise Software excluding ESRI Developer Network and installed by Licensee on Licensee's hardware. (1)for the term identified in this ELA and(2)for Licensee's • "Documentation" means all printed and digital materials own internal use. including, but not limited to, help files, user reference b. Deploy one subscription of the ESRI Developer Network documentation, training documentation, or technical for use by a single named developer for the term of this information and briefings. ELA. • "ELA Maintenance" means Tier 2 Support, updates, and c. Access and use any secure ESRI Web site resources patches provided by ESRI to Licensee for the Enterprise made available to Licensee for Licensee's internal use, Software, provided that Licensee follows ESRI's terms of use policy • "ELA Fee"means the fee set forth in the ELA Quotation. specified therein. All password or controlled access • "ELA Quotation" means the ELA offer letter and ESRI information provided by ESRI shall be treated as ESRI quote form. confidential information. • "Enterprise Software" means the Software, Data, Web Services, and Documentation identified in the ELA 3.2 Consultant Access. Subject to 3.1, Licensee may provide Quotation as Enterprise Software. access to the Enterprise Software to any consultant or contractor • "Incident" means a failure of the Software to operate of Licensee, provided consultants and contractors use is for the according to the Documentation in which such failure sole benefit of Licensee while (i) working on-site at Licensee's substantially impacts operational or functional performance. facilities or(ii)remotely using/accessing Enterprise Software from • "License Agreement" and"ELA" are used interchangeably Licensee's on-site computers or machines. Licensee shall be and mean the license terms and conditions including responsible for compliance by consultants or contractors with the Exhibit 1—Scope of Use (E300) that apply to Enterprise terms and conditions of this ELA. Licensee shall require Software provided to Licensee by ESRI under this consultant or contractor to discontinue use of and access to agreement. Enterprise Software upon completion of work for Licensee. • "Software" means the actual copy of all or any portion of ESRI's proprietary software technology, accessed or ARTICLE 4—SCOPE OF USE downloaded from an authorized ESRI Web site, or delivered on any media, in any format, including backups, 4.1 Permitted Uses updates, service packs, patches, hot fixes, or permitted merged copies. a. Licensee may install and store the Software, Data, and • "Samples" means sample code, sample applications, add- Documentation on electronic storage device(s). ons, or sample extensions of Software, Data, b. Licensee may make one (1)copy of the Software, Data, and Documentation,or Web Services. Documentation for archival purposes. Licensee may make • "Technical Support"means a process to attempt to resolve routine computer backups. reported Incidents through error correction; patches; hot c. Licensee may customize the Software using any(i) macro or fixes; workarounds; replacement deliveries; or any other scripting language, (ii) published application programming type of Software, Data, or Documentation corrections or interface (API),or(iii)source or object code libraries, but only modifications. to the extent that such customization is described in the • "Tier 1 Help Desk" means Licensee point of contact from Documentation. which all Tier 1 Support will be given to Licensee. d. Licensee may use, copy, or prepare derivative works of the • "Tier 1 Support"means the Technical Support provided by Documentation supplied in digital format and thereafter the Tier 1 Help Desk as the primary contact to Licensee in reproduce, display, and redistribute the customized attempted resolution of reported Incidents. documentation only for Licensee's own internal use.Portion(s) • "Tier 2 Support"means the Technical Support provided by of Documentation supplied in digital format merged with other ESRI to the Tier 1 Help Desk when the Incident cannot be software and printed or digital documentation are subject to resolved through Tier 1 Support. this ELA. Licensee shall include the following copyright • "Web Services"means software services or ESRI or third- attribution notice acknowledging the proprietary rights of ESRI party data provided by ESRI that perform geographic and its licensor(s): "Portions of this document include information system(GIS) functions,tasks, or data services intellectual property of ESRI and its licensor(s) and are used and are accessed over the Internet, excluding Virtual herein under license. Copyright©[Insert the actual copyright Campus. - date(s)from the source materials]ESRI and its licensor(s).All rights reserved." ARTICLE 2—INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP 4.2 Uses Not Permitted The Enterprise Software are licensed and not sold. ESRI and its a. Except as provided herein, Licensee shall not sell,rent,lease, licensors own the Enterprise Software, which are protected by sublicense, lend, assign, or time-share the Enterprise United States and applicable international laws, treaties, and Software. Licensee shall not act as a service bureau or conventions regarding intellectual property and proprietary rights commercial application service provider (ASP) that allows including trade secrets. Licensee agrees to use reasonable third party access to the Enterprise Software. A commercial means to protect the Enterprise Software from unauthorized use, ASP means a Licensee who uses Enterprise Software for a Page 2 of 5 E214 12/08 site or service and operates the site or the service for a profit 6.2 Data and Web Services Disclaimer. The Data and Web or generates revenue by charging for access to the site or Services may contain some nonconformities, defects, errors, or service. omissions. THE DATA AND WEB SERVICES ARE PROVIDED b. Licensee shall not redistribute the Software to unauthorized "AS IS"WITHOUT WARRANTY OF ANY KIND. Without limiting third parties, in whole or in part, including, but not limited to, the generality of the preceding sentence, ESRI and its licensor(s) extensions, components, or DLLs, without the prior written do not warrant that the Data and Web Services will meet approval of ESRI. Licensee's needs or expectations, that the use of the Data and c. Licensee shall not reverse engineer, decompile, or Web Services will be uninterrupted, or that all nonconformities disassemble the Enterprise Software,except to the extent that can or will be corrected. ESRI and its licensor(s) are not inviting such activity is expressly permitted by applicable law reliance on this Data or Web Services, and Licensee should notwithstanding this restriction. always verify actual Data or Web Services. d. Except to the extent that applicable law prohibits this restriction,Licensee shall not make any attempt to circumvent 6.3 Special Disclaimer. SAMPLES AND HOT FIXES ARE the technological measure(s)that controls access to, or use DELIVERED "AS IS" WITHOUT WARRANTY OF ANY KIND. of,the Enterprise Software. LICENSEE ASSUMES ALL RISK AS TO THE QUALITY AND e. Licensee shall not redistribute the Software registration PERFORMANCE OF THE SAMPLES AND HOT FIXES. number/license authorization file(s), developer license file(s), or Web Services access codes to unauthorized third parties 6.4 Internet Disclaimer. THE PARTIES EXPRESSLY without the prior approval of ESRI. ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A f. Licensee shall not use the Software or Web Services to NETWORK OF PRIVATE AND PUBLIC NETWORKS,AND THAT transfer or exchange any material in where such transfer or (i)THE INTERNET IS NOT A SECURE INFRASTRUCTURE, exchange is prohibited by intellectual property laws or any (ii)THE PARTIES HAVE NO CONTROL OVER THE INTERNET, other applicable laws. AND (iii)NONE OF THE PARTIES SHALL BE LIABLE FOR g. Licensee shall not remove or obscure any ESRI or its DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE licensor(s) patent, copyright, trademark, or proprietary rights DISCONTINUANCE OF OPERATION OF ANY PORTION OF notices contained in or affixed to the Enterprise Software. THE INTERNET OR POSSIBLE REGULATION OF THE h. Licensee shall not unbundle individual or component parts of INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE the Software or Data for independent use. OPERATION OF THE WEB SERVICE. i. Hard-copy Documentation may not be copied. j. Licensee shall not use, transfer, redistribute, or Deploy 6.5 General Disclaimer.EXCEPT FOR THE ABOVE EXPRESS Enterprise Software outside of the United States. LIMITED WARRANTIES, ESRI DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARTICLE 5—TERM AND TERMINATION AND EXPIRATION INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A 5.1 Term.The term of the ELA shall be three (3)years from the PARTICULAR PURPOSE, NONINTERFERENCE, SYSTEM Effective Date,unless this ELA is terminated earlier as provided INTEGRATION,AND NONINFRINGEMENT OF INTELLECTUAL herein.The term of all licenses and the authorized period of use PROPERTY RIGHTS. ESRI DOES NOT WARRANT AND for all Enterprise Software Deployed shall be concurrent with the DISCLAIMS THAT THE ENTERPRISE SOFTWARE WILL MEET term of this ELA. No indefinite or perpetual term license grants LICENSEE'S NEEDS;THAT LICENSEE'S OPERATION OF THE are provided with this ELA. SAME WILL BE UNINTERRUPTED, ERROR FREE, FAULT TOLERANT, FAIL-SAFE; OR THAT ALL NONCONFORMITIES 5.2 Termination for Lack of Funds. Either party may terminate CAN OR WILL BE CORRECTED. SOFTWARE, DATA, WEB this ELA for Lack of Funds. Lack of Funds is the inability of SERVICES, AND DOCUMENTATION ARE NOT DESIGNED, Licensee to secure appropriation of funds through the legislative MANUFACTURED, OR INTENDED FOR USE IN or governing body's approval process for annual payments due. ENVIRONMENTS OR APPLICATIONS THAT MAY LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL PROPERTY/ 5.3 Termination for a Material Breach. Either party may ENVIRONMENTAL DAMAGE. ANY SUCH USE SHALL BE AT terminate this ELA for a material breach by the other party. The LICENSEE'S OWN RISK AND COST. breaching party shall be given a period of ten(10)days from date of written notice to cure any material breach. 6.6 Exclusive Remedy.Licensee's exclusive remedy and ESRI's entire liability for breach of the limited warranties set forth in this 5.4 No Use Upon Expiration or Termination.Upon expiration or Article 6 shall be limited, at ESRI's sole discretion, to termination of this ELA, all Enterprise Software Deployed shall (i)replacement of any defective media; (ii)repair, correction,or a terminate. Licensee shall cease access and use of Web Services workaround for the Software subject to the ESRI Support and clear Web Services client-side data cache and uninstall, Services Policy;or(iii)return of the license fees paid by Licensee remove, and destroy all Deployed Software, Data, and for the Software or Documentation that does not meet ESRI's Documentation and any whole or partial copies, modifications, limited warranty, provided that Licensee uninstalls, removes, and media, or merged portions in any form and execute and deliver destroys all copies of the Software or Documentation and evidence of such actions to ESRI. ELA Maintenance, Virtual executes and delivers evidence of such actions to ESRI. Campus access, and User Conference Registrations shall also terminate. ARTICLE 7—LIMITATION OF LIABILITY ARTICLE 6—LIMITED WARRANTIES AND DISCLAIMERS 7.1 Disclaimer of Certain Types of Liability. ESRI AND ITS LICENSOR(S) SHALL NOT BE LIABLE TO LICENSEE FOR 6.1 Limited Warranties. Except as otherwise provided in this COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR Article 6, ESRI warrants that (i) the unmodified Software will SERVICES; LOST PROFITS; LOST SALES OR BUSINESS substantially conform to the published Documentation and (ii)the EXPENDITURES;INVESTMENTS;BUSINESS COMMITMENTS; media upon which the Software, Data, and Documentation are LOSS OF ANY GOODWILL OR FOR ANY INDIRECT, SPECIAL, provided will be free from defects in materials and workmanship INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT under normal use and service for a period of ninety (90) days OF OR RELATED TO THIS ELA OR USE OF THE ENTERPRISE from the date of receipt. SOFTWARE, HOWEVER CAUSED ON ANY THEORY OF LIABILITY, WHETHER OR NOT ESRI OR ITS LICENSOR(S) Page 3 of 5 E214 12/08 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH ARTICLE 9—GENERAL PROVISIONS DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL 9.1 Future Versions. Updated or new Enterprise Software may PURPOSE OF ANY LIMITED REMEDY. require additional or revised terms and conditions. Terms and conditions subject to revision are limited to Article 1—Definitions, 7.2 General Limitation of Liability. EXCEPT AS PROVIDED IN Article 4—Scope of Use and Exhibit 1—Scope of Use (E300),or ARTICLE 8—INFRINGEMENT INDEMNITY, ESRI'S TOTAL any term as required by law. ESRI may provide notice of the CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES revisions to Licensee in writing or by posting them on ESRI's Web OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED site at www.esri.com/legal. The revisions shall be incorporated TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT into this ELA upon use of the updated or new Enterprise LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, Software. Should Licensee reject the revisions, then Licensee OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID shall not install or use the revised, updated, or new Enterprise BY LICENSEE FOR ENTERPRISE SOFTWARE PURSUANT TO Software. THIS ELA. 9.2 Export Control Regulations. Licensee expressly 7.3 Applicability of Disclaimers and Limitations. The parties acknowledges and agrees that Licensee shall not export, agree that ESRI has set its prices and entered into this ELA in reexport,transfer,or release the Enterprise Software, in whole or reliance upon the disclaimers and limitations set forth herein,that in part, to (i) any U.S. embargoed country (or to national or the same reflect an allocation of risk between the parties,and that resident of any U.S. embargoed country); (ii)any person on the the same form an essential basis of the bargain between the U.S. Treasury Department's list of Specially Designated parties. THESE LIMITATIONS SHALL APPLY Nationals; (iii)any person or entity on the U.S. Commerce NOTWITHSTANDING ANY FAILURE OF ESSENTIAL Department's Table of Denial Orders; or(iv)any person or entity PURPOSE OF ANY LIMITED REMEDY. to where such export, reexport, or provision violates any U.S. export control laws or regulations including, but not limited to,the ARTICLE 8—INFRINGEMENT INDEMNITY terms of any export license or licensing provision and any amendments and supplemental additions to U.S. export laws as 8.1 ESRI shall defend, indemnify, and hold harmless Licensee they may occur from time to time. from and against any loss, liability, cost, or expense, including reasonable attorneys' fees, which may be incurred by Licensee 9.3 Taxes and Fees. Sales or use taxes for the fees quoted are against any claims, actions, or demands by a third party alleging as required by law. The tax amount may change depending on that the Software infringes a U.S.patent,copyright, or trademark the time lapse between this quote and date of the invoice. ESRI provided will include applicable sales or use taxes on your invoice unless you provide proof with your order that your organization or use of a. Licensee promptly notifies ESRI in writing of the claim; the product is tax exempt. b. Licensee provides documents clearly describing the allegations of infringement; 9.4 No Implied Waivers.The failure of either party to enforce any c. ESRI has sole control of the defense of any actions and provision of this ELA shall not be deemed a waiver of the negotiations related to the defense or settlement of any provisions or of the right of such party thereafter to enforce that or claim;and any other provision. d. Licensee cooperates fully in the defense of the claim. 9.5 Severability. The parties agree that if any provision of this 8.2 If the Software is found to infringe a U.S.patent,copyright,or ELA is held to be unenforceable for any reason, such provision trademark, ESRI, at its own expense, may either(i) obtain rights shall be reformed only to the extent necessary to make the intent for Licensee to continue using the Software or (ii)modify the of the language enforceable. allegedly infringing elements of the Software while maintaining substantially similar software functionality or data/informational 9.6 Successor and Assigns. Licensee shall not assign, content. If neither alternative is commercially reasonable, the sublicense,or transfer Licensee's rights or delegate its obligations infringing items shall be returned to ESRI, the license shall under this ELA without ESRI's prior written consent, and any terminate,and Licensee shall uninstall the infringing items.ESRI's attempt to do so without consent shall be void.This ELA shall be entire liability shall then be to indemnify Licensee pursuant to binding upon the respective successors and assigns of the parties section 8.1 and to refund a portion of the fees paid by Licensee in to this ELA. the current fee payment period.The refund will be calculated for the time remaining for the fee payment period, starting from the 9.7 Survival of Terms. The provisions of Articles 2, 5, 6, 7, 8, notice date of infringement to the end of the fee payment period. and 9 of this ELA shall survive the expiration or termination of this ELA. 8.3 ESRI shall have no obligation to defend Licensee or to pay any resulting costs, damages,or attorneys'fees for any claims or 9.8 Equitable Relief. The parties agree that any breach of this demands alleging direct or contributory infringement of the ELA may cause irreparable damage and that,in the event of such Software by (i)the combination of or integration with a product, breach, in addition to any and all remedies at law, a party shall process,or system not supplied by ESRI;(ii)material alteration by have the right to seek an injunction,specific performance,or other anyone other than ESRI or contractors acting on behalf of ESRI; equitable relief in any court of competent jurisdiction. (iii)use after Licensee has been notified of possible infringement; or(iv) use after modifications are provided or a return is ordered 9.9 Governing Law. This ELA shall be governed by and by ESRI under section 8.2. construed in accordance with the laws of the state in which 8.4 In no event shall the indemnification set forth in this Article 8 Licensee is located without reference to conflict of laws principles, apply to any Samples or hot fixes delivered hereunder. except that U.S.federal law shall govern in matters of intellectual property. THE FOREGOING STATES THE ENTIRE OBLIGATION OF ESRI AND ITS DISTRIBUTOR WITH RESPECT TO ARTICLE 10—ELA MAINTENANCE INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. ELA Maintenance for Software provided under this ELA is included with the ELA Fee. ELA Maintenance includes standard Page 4 of 5 E214 12/08 maintenance benefits specified in the most current applicable c. ESRI shall provide Licensee with up to ten (10) hardware ESRI U.S. Software Maintenance Program document (found at keys.Additional hardware keys may be ordered at the prices www.esri.com/legal) as modified by this Article 10—ELA in effect at the time of purchase. Maintenance. ELA Maintenance does not include Technical d. ESRI shall provide registration numbers or keycodes, as Support for Web Services. applicable, to activate the nondestructive copy protection program that enables the Software to operate. a. Tier 1 Support Provided by Licensee e. Licensee shall Deploy,install,configure,and track installation of the Software and Data. (1) Licensee shall provide Tier 1 Support through the Tier 1 Help Desk to all Licensee's authorized users. 11.2 Purchase Order Requirements (2) The Tier 1 Help Desk shall use analysts fully trained in the Software they are supporting. a. All orders pertaining to this ELA shall be processed through (3) At a minimum, Tier 1 Support shall include those Licensee's centralized point of contact. activities that assist Licensee in resolving how-to and b. The following information shall be included in each Purchase operational questions as well as questions on Order: installation and troubleshooting procedures. (4) Tier 1 Support analysts shall be the initial points of (1) Licensee name,ESRI customer number,if known,and contact for all questions and Incidents.Tier 1 Support bill-to and ship-to addresses analysts shall obtain a full description of each reported (2) Purchase Order number Incident and the system configuration from Licensee. (3) Applicable annual payment due This may include obtaining any customizations, code (4) On the face page of its Purchase Order(or ordering samples, or Data involved, if applicable, to the document), Licensee shall insert: "THIS PURCHASE Incident.Analysts shall also use any other information ORDER IS GOVERNED BY THE TERMS AND and databases they may develop to satisfactorily CONDITIONS OF THE ESRI ELA, AND ANY resolve Incidents. DIFFERENT OR ADDITIONAL TERMS AND (5) If the Tier 1 Help Desk cannot resolve the Incident,an CONDITIONS IN OR WITH THIS PURCHASE authorized Tier 1 Help Desk individual may contact ORDER SHALL NOT APPLY." ESRI Technical Support. The Tier 1 Help Desk shall provide support in such a way as to minimize repeat ARTICLE 12—ENDORSEMENT AND PUBLICITY calls and make solutions to problems available to Licensee. This ELA shall not be construed or interpreted as an exclusive (6) Tier 1 Help Desk individuals identified by Licensee are dealings agreement or an endorsement of ESRI by Licensee. the only individuals authorized to contact ESRI directly Licensee agrees that upon execution of the ELA, ESRI may for Tier 2 Support. Licensee may revise named publicize the existence of this ELA with Licensee. individuals by written notice. ARTICLE 13—ADMINISTRATIVE REQUIREMENTS b. Tier 2 Support Provided by ESRI 13.1 OEM Licenses. If Licensee obtains Software, Data, Web (1) ESRI shall log calls received from the Tier 1 Help Services, or any component thereof as part of an original Desk individuals. equipment manufacturer (OEM) software program or product (2) ESRI shall attempt to resolve the Incident by assisting developed and licensed by an OEM business partner of ESRI, the Tier 1 Help Desk individuals. Licensee shall not be entitled to or seek any discount from the (3) When the Incident is resolved, ESRI shall OEM business partner or ESRI,directly or indirectly,as a result of communicate the information to the Tier 1 Help Desk or based on the availability of such Software, Data, or Web individuals, and the Tier 1 Help Desk shall Services,as Enterprise Software under this ELA.In addition,such disseminate the resolution to Licensee. Software, Data, Web Services, or any component thereof included in the OEM software program or product will be licensed ESRI may, at ESRI's sole discretion, make patches, hot fixes, or through the license agreement provided by the OEM business updates available for downloading from ESRI's Web site or partner and not through this ELA. deliver them on media. 13.2 Product Obsolescence. During the term of this ELA,some ARTICLE 11—ORDERING, ADMINISTRATIVE PROCEDURES, Enterprise Software items may become obsolete, may no longer DELIVERY,AND DEPLOYMENT be commercially offered, or may no longer be available for unlimited quantity Deployment. Licensee may continue to use 11.1 Purchase Orders,Delivery,and Deployment such Enterprise Software that has been Deployed for the term of the ELA, but updates for such obsolete Enterprise Software may a. Licensee shall issue a Purchase Order upon execution of the not be available. ESRI's Product Life Cycle Support Policy, ELA and annually thereafter in accordance with the payment available at http://support.esri.com/index.cfrn?fa=knowledgebase schedule. Payment shall be due and payable within thirty(30) .productLifeCycles.gateway, defines the support phases and days of the anniversary date of the Effective Date, with the overall support plans. ELA Maintenance shall be subject to the initial payment due within thirty (30) days of execution of the Product Life Cycle Support Status, which can be found at ELA. http://support.esri.com/index.cfm?fa=software.gateway by b. Upon receipt of the initial Purchase Order from Licensee, selecting the product type, then clicking the Product Life Cycle ESRI shall deliver two (2) sets of media containing the link for specific product plans. Software, Data, and Documentation to Licensee for Deployment activities.ESRI shall ship the media to the ship-to 13.3 Renewal. Upon expiration of this ELA, the parties will address identified on the Purchase Order, FOB Destination, evaluate Licensee's requirements. Any follow-on ELA will be with shipping charges prepaid. Licensee may purchase offered in accordance with license terms and condition and pricing additional media sets at the prices in effect at the time of then in effect and based upon Licensee's then current population purchase. count. Page 5 of 5 E214 12/08 EXHIBIT 1 • !'Fe s.: ESRI SCOPE OF USE (E300 7/09) ESRI,380 New York St.,Redlands,CA 92373-8100 USA•TEL 909-793-2853•FAX 909-793-5953 The scope of use for the ESRI Software,Data,Web Services,and Documentation identified below is described in the applicable footnotes identified in parentheses. Desktop GIS • NetEngine Internet(5) • ArcReader(20 and 25) • ArcGIS Business Analyst Server Developer(6,25, • ArcView(1 or 2 and 25 and 44) 33,35,and 51) • ArcEditor(1 or 2 and 25,26,and 44) • Arclnfo(2,25,26,and 44) GIS Viewers and Connectors • ArcGIS Desktop Extensions(7) • Maplt(11,25,31,33,35,49,and 50) • ArcView 3.x and Extensions(1,7,and 17) ■ ArcExplorer-Java and Windows Editions (20 and 25) Server GIS • ArcGIS Explorer(20 and 25) • ArcGIS Server and Extensions • ArcGIS for AutoCAD(1,20,and 25) - Workgroup(either 3 or 5 and 8,9,25,28,29, ■ Geoportal Clients for ArcGIS(7,20,and 52) 30,32,38,39,40,and 45) - Enterprise(either 3,4,or 5 and 8,9,25,27,31, Business GIS 38,39,40,and 45) • ArcGIS Business Analyst(1 or 2 and 25,45, - ArcGIS Server Geoportal Extension(either 4 or and 48) 5 and 7,47,and 52) • BusinessMAP(I and 25) • ArcIS • ArcLogistics(either 1 or 2 and 25) - ArcIMS and Extensions(either 3,4,or 5 and 8, • ArcLogistics Server(5, 8,9,21,25,28,39,40, 10,and31) and45) - ArcIS ArcMap Server(either 3,4,or 5 • ArcLogistics Navigator(1,25,and 46) and 31) • ArcLogistics Navigator Deployments(1, 15, • Tracking Server(either 4 or 5 and 31) and 16) • ArcGIS Server Image Extension(either 3,4,or 5 and 8,31,and 42) Cartographic Production - ArcGIS Server Image Extension Service Editor • Maplex(1) (1) • Production Line Tool Set(PLTS)for ArcGIS,GIS • RouteMAP IMS(either 3,4,or 5 and 8,25,and 31) Data ReViewer,Map Production System-Atlas, • ArcGIS Business Analyst Server(5,8,9,21,25, Job Tracking for ArcGIS(JTX)(either 1 or 2),Job 28,31,39,40,45,and 48) Tracking for ArcGIS Server(either 4 or 5 and 7) Mobile GIS Web Services • ArcPad(1, 12, 13,and 25) • ArcGIS Online(6,25,33,34,and 35) • ArcPad Application Builder(1 and 25) • ArcGIS Mobile Deployments (1, 15, 16,and 25) Data • ESRI Data and Maps(either 1 or 5 and 23 and 37) Developer GIS • ESRI Data(either 1,2,or 5 and 25 and 48) • ESRI Developer Network(EDN) Software,Web - Demographic,Consumer Spending,Market Services,and Data(6,7,24,25,26,33,34,35, Potential,Retail MarketPlace,Business,Traffic, and 36) Shopping Center,Cable Boundaries,Banking, • ArcGIS Engine Developer Kit and Extensions and Crime (1 and 14, 15,22,25,26,and 43) • Tapestry Segmentation(either 1,2,or 5 and 21 and • ArcGIS Engine Runtime and Extensions(1, 15,22, 48) 25, and 26) • Address Coder(either 1,2,or 5 and 21,22,25,and • MapObjects-Windows Edition(1, 14, 15, 16, 48) and 18) • Sourcebook•America(1 and 21) • MapObjects-Java Edition(1,5,8, 15, 18,and 19) • ArcGIS Data Appliance(6,23,25,and 41) • MapObjects LT(1, 14,and 16) • StreetMap Premium(either 1,2,4,or 5 and 6,23, • NetEngine(1,5,and 15) and 25) Page 1 of 4 E300 7/09 1. "Single Use License."Licensee may permit a single authorized end user to install and use the Software,Data,and Documentation on a single computer for use by that end user on the computer on which the Software is installed.Remote access is not permitted.Licensee may permit the single authorized end user to make a second copy for end user's exclusive use on a portable computer as long as only one(1) copy of the Software,Data,and Documentation is in use at any one(1) time. 2. "Concurrent Use License."Licensee may install and use the Software,Data,and Documentation on computer(s)on a network,but the number of simultaneous users may not exceed the number of licenses acquired. 3. "Development Server License."Licensee may install and use the Software on a single computer to design and build applications that interface with or utilize server Software as described in the Documentation. 4. "Staging Server License."In addition to the Development Server License rights,Licensee may use and install the Software for the following purposes:user acceptance testing, performance testing,load testing of other third-party software,staging new commercial data updates,and training activities. 5. "Deployment Server License." In addition to the Staging Server License rights,Licensee may install and use the Software or Data to provide services to multiple users on the same or other computer(s). 6. Provided only as a Term License. 7. Extensions to Software programs follow the same scope of use as that granted for the corresponding Software programs. 8. The administration tools for the Software may be copied and redistributed throughout Licensee's organization. 9. User-developed ArcGIS Server administration tools may be copied throughout Licensee's organization,but the ArcCatalog application(found in ArcGIS Desktop)may not be copied. 10. The ArcIMS license includes the right to deploy MapObjects—Windows Edition applications on the Internet or intranet. Licensee shall not develop client/server solutions with the ArcIMS Java Archive(JAR)files without a license for the MapObjects—Java Edition Developer Kit.' 11. The Software is licensed per server.The licensed server is the server on which the Spatial Data Service is installed. Licensee may install and use the Software to provide services to multiple users on the same or other computer(s). 12. ArcPad SOFTWARE IS NOT LICENSED FOR NAVIGATIONAL USE. 13. "Dual Use License" means the Software may be installed on a desktop computer and used simultaneously with either a personal digital assistant(PDA)or handheld mobile computer as long as the Software is only used by a single individual at any one(1)time. 14. Developers must include the following attribution with any deployed MapObjects application: "Portions of this computer program are owned by LizardTech,Inc.,and are Copyright® 1995-2002 LizardTech,Inc.,and/or the University of California. All rights reserved.U.S.Patent No.5,710,835." 15. Deployment licenses for desktop or Internet application(s)may be subject to payment of additional license fees. 16. Licensee may deliver applications to its sublicensee(s)provided Licensee uses a written sublicense agreement that protects ESRI's rights in its Software,Data,Web Services,and Documentation to the same extent as the ESRI License Agreement including,but not limited to,the following terms: a. SubIicensee may not reverse engineer,decompile,or disassemble the ESRI Software,Data,Web Services,or Documentation,except to the extent permitted by applicable law;copy for commercial use;transfer;or assign its rights under the license grant; b. Sublicensee may not use any ESRI Software,Data, Web Services,or Documentation,in whole or in part, separate from Licensee's executable application;and c. Third-party dependent or required components are redistributable subject to permission from the owner or author. 17. Licensee may use Business Objects Crystal Reports software only with the ArcView 3.x Software with which it was acquired and subject to the Crystal Reports License Agreement available on the media.Licensee may not use a software program or system to cache or queue report requests. 18. The deployment license is per application per computer. 19. The MapObjects—Java Edition contains Java Archive files,which indicate they are authentic ESRI-certificated files when used over the Internet.Licensee shall not use ESRI certification or reference ESRI as a source of trusted content in any modified MapObjects Java Archive files.Licensee may deploy the unmodified Java class ESRI certified libraries as an integral part of the Licensee's application(s). 20. Licensee may reproduce and deploy the Software provided all the following occur: (a)The Software is reproduced and deployed in its entirety;(b)a license agreement accompanies each copy of the Software that protects the Software to the same extent as the ESRI License Agreement,and the recipient agrees to be bound by the terms and conditions of the Iicense agreement;(c)all copyright and trademark attributions/notices are reproduced; and(d)there is no charge or fee attributable to the use of the Software. Page 2 of 4 E300 7/09 • 21. Licensee shall not withhold any substantial right(e.g.,extension of credit)from any individual based solely on the individual's place of residence,as profiled in the Tapestry Segmentation system. 22. (a) ArcGIS Engine Runtime Iicenses shall not be used for Internet and Server development and deployment.(b)An end user must license either ArcGIS Engine Runtime Software or other ArcGIS Desktop Software(ArcView,ArcEditor,or ArcInfo)to obtain the right to run an ArcGIS Engine application on one(1)computer.(c)The ArcGIS Engine Runtime extensions shall not be used in combination with ArcGIS Desktop Software to run ArcGIS Engine applications.A single user can have multiple applications installed on one(1)computer for use only by that end user. 23. Licensee may redistribute the Data as described in the Redistribution Rights Matrix available at http://www.esri.com/ legal/,in the Help system,or in supporting metadata files,subject to the specific attribution descriptions and requirements for the dataset accessed. 24. EDN Software,Web Services,and Data may only be used by one(1)named developer per subscription solely for the purposes of research,development,testing,and demonstration of a prototype'application.EDN Software and Data may be installed on multiple computers for use by any named EDN developer. 25. Use of included third-party owned data shall be subject to the Use of Data Restrictions found at http://www.esri.coml legal/for the specific Data accessed.The Use of Data Restrictions may be modified by ESRI from time to time.If a modification is unacceptable to Licensee,Licensee may cancel a subscription upon written notice to ESRI,or discontinue use of the Data or Web Services,as applicable.If Licensee continues to use the Data or Web Services, Licensee will be deemed to have accepted the modification. 26. An ArcSDE Personal Edition geodatabase is restricted to four (4)gigabytes of Licensee data. 27. ArcGIS Server Web ADF Runtime Software may not be deployed independently of Licensee's ArcGIS Server Enterprise configuration. 28. Limited to ten(10)concurrent end users of non ArcGIS Server applications.This restriction includes use of ArcGIS Desktop products,ArcGIS Engine products,and third-party applications that connect directly to any ArcGIS Server geodatabase.There are no Iimitations on the number of connections from Web applications. 29. Can only be used with SQL Server 2005/2008 Express. 30. Restricted to a maximum total of four(4)gigabytes of Licensee data. 31. Redundant Software installation(s)for failover operations may be implemented during the period the primary site is nonoperational.The redundant Software installation(s)shall remain dormant,except for system maintenance and updating of databases,while the primary site or any other redundant site is operational. 32. No redundant Software installation is permitted. 33. ArcG1S Online may only be utilized in conjunction with ArcGIS Desktop,ArcGIS Server(including the Web ADF), ArcGIS Mobile,ArcGIS Explorer,ArcGIS Business Analyst Server Developer,and ESRI MapIt Software,and the ArcGIS APIs(including JavaScriptTM,Adobe®Flex' ,and Microsoft'' SilverlighttM/WPFTM).Licensee's access and use of ArcGIS Online Standard Services shall be subject to Licensee's consent to the terms and conditions of ESRI Web Site Terms of Use Agreement(G-577)found at http://www.er.si.com/legali.ArcGIS Desktop Licensees that are current on maintenance may access and use Microsoft®Bing MapsTM subject to Licensee's consent to the terms and conditions of Bing Maps for ArcGIS Desktop Users Services Agreement(G-600)found at http://www.esri.com/legal/. 34. Licensee's organization is limited to the number of specified credits,transactions,geography,or number of users as described in the online product description. 35. Licensed end users shall not share the client-side data cache derived from ArcGIS Online with other licensed end users or third parties. 36. Licensee may not download or store resulting data or information except for results derived from using ArcWeb Services Address Manager. 37. Data provided with StreetMap USA may be used for mapping,geocoding,and routing purposes but is not Iicensed for dynamic routing purposes.For instance,StreetMap USA may not be used to alert a user about upcoming maneuvers (such as warning of an upcoming turn)or calculating an alternate route if a turn is missed. 38. The ArcGIS Server 3D extension included with ArcGIS Server Standard and Advanced(Workgroup or Enterprise)may only be used for generating globe data cache(s)or publishing a globe document as an ArcGIS Globe Service.No other use of the ArcGIS Server 3D extension Software is permitted with AreGIS Server Standard. The ArcGIS Server 3D extension can be used with ArcGIS Server Advanced if the additional license fees for the 3D extension have been paid. 39. Any editing functionality included with ArcGIS Server is not permitted for use with ArcGIS Server Basic(Workgroup or Enterprise). 40. Geospatial Enterprise JavaBeans(EJB)provided with ArcGIS Server(Workgroup or Enterprise) are permitted for use only with ArcGIS Server Advanced. 41. Licensee may only use Data from a single state with the Single State version of ArcGIS Data Appliance.This restriction applies to a large-scale(i.e.,scale levels below 1:100,000)street map,transportation layer,boundaries and places layer, and one(1)-meter or better resolution imagery included in the USA Collection,This restriction does not apply to the Page 3 of 4 E300 7/09 small-scale(i.e.,scale levels above 1:100,000)maps provided in the World Collection,which are intended for display at global and regional scales. 42. Licensee has the right to one(1)desktop deployment of the ArcGIS Server Image extension Service Editor for every four(4)cores of ArcGIS Server Image extension that is licensed.Additional Service Editor desktop deployments can be licensed for an additional fee. 43. Licensee may develop an unlimited number of applications on a single computer and deliver the applications to end users with or without the Engine Runtime Software. 44. For any operating system environment in which Licensee runs instances of the Concurrent Use license management software,Licensee may run up to the same number of passive failover instances of the Concurrent Use license management software in a separate operating system environment for temporary failover support. 45. Data licensed with ArcGIS Business Analyst and ArcGIS Business Analyst Server are restricted to use with the respective Business Analyst extension and are not for general use with ArcGIS Desktop or ArcGIS Server Software. 46. Licensee should not follow any route suggestions that appear to be hazardous,unsafe,or illegal.Licensee assumes all risk of using this navigation Software. 47. Licensee may only use the Software in conjunction with a minimum of ArcGIS Server Standard Enterprise. 48. Licensee may include reports and maps created from the Software or Data in hard-copy or read-only formats for presentation packages or marketing studies for subsidiaries and customers.The value of the ESRI reports and maps must be less than twenty percent(20%)of Licensee's total value of the presentation package or marketing study.Full, complete,stand-alone reports or maps created from the Software or Data and not part of a presentation package or marketing study cannot be resold,sublicensed,or otherwise transferred without prior,written permission of ESRI. Licensee's third-party customer may only receive reports and maps generated by Licensee and may only use the maps and reports received from Licensee for internal purposes.In no case shall Licensee redistribute the Data in digital formats. 49. ESRI MapIt Silverlight Web or WPF applications may not be deployed independent of Licensee's Maplt deployment configuration. 50. Licensee has the right to one(1)desktop deployment of the Spatial Data Assistant for each ESRI Maplt Server License. 51. ArcGIS Business Analyst Server Developer and Data may only be installed on one(1)server per license solely for the purposes of research,development,testing,and demonstration of a prototype application. 52. Source code is the intellectual property of ESRI.Licensee's access to and use of any source code file identified as "Software" in a README file or at http://www.esri.comlleeal/should be treated as a trade secret for Licensee's own internal use only and not for further redistribution or access by unlicensed third parties.Licensee shall not modify the Software,Documentation,Data,or source code to incorporate,embed,link,or otherwise include any code, libraries,or data licensed or distributed under an open source licensing or distribution models similar to Free Software Foundation's GNU's General Public License(GPL)or GPL-compliant licenses,including,without limitation,the Artistic License (e.g.,Perl), the Mozilla Public License,the NetScape Public License,and the Sun Community or Industry Standards License,that could require a user to make its proprietary source code available to a requesting third party. Page 4 of 4 E300 7/09 Ill' • ;-, ESRI April 28,2010 Ms. Ruth Parish City of San Bernardino Information Services Department San Bernardino, CA Dear Ruth, As a follow up to our phone call on February 2nd regarding future purchases of ESRI software and maintenance,please find below a proposal for an Enterprise License Agreement(ELA)from ESRI. This proposal letter will cover pricing and key business terms for this type of agreement. The ESRI Enterprise License Agreement(ELA)with City of San Bernardino (the City)will be for three years and will grant the City unlimited access to the ESRI products listed below, including maintenance on all software covered under this agreement for the term of the agreement. The agreement will be effective on the date executed and requires a firm three-year commitment from the City. The City of San Bernardino has the reputation as a leader in GIS in the region and is looked upon as a leader in the deployment of technology and citizen services.Although the City has deployed a considerable amount of ESRI technology,ESRI's work with cities of similar size indicates that there is significant potential to apply GIS in many additional technical, business and market areas within the City of San Bernardino. For these reasons, we believe that the City of San Bernardino will greatly benefit from an enterprise license agreement. An ELA will provide the City numerous benefits including: • A lower cost-per-unit for licensed software • Substantially reduced administrative and procurement expenses • Maintenance on all ESRI software deployed under this agreement • Complete flexibility to deploy software products when and where needed. This program includes unlimited access by your organization during the term of this agreement to the ESRI Enterprise Software listed below.Licenses are valid for the three-year term of the agreement. • ArcGIS desktop software-ArcInfo,ArcEditor, ArcView • ArcGIS desktop extensions -3D Analyst, Spatial Analyst,Geostatistical Analyst, ArcScan, ArcGIS Publisher, Maplex,Network Analyst,ArcGIS Schematics,Job Tracking for ArcGIS (JTX) • ArcGIS server-based software—ArcGIS Server(Advanced, Standard,Basic/Enterprise& Workgroup) • ArcIMS • ArcGIS Server extensions-3D Analyst,Network Analyst, Spatial Analyst, Geostatistical, Schematics,Image,and Job Tracking for ArcGIS(JTX) • ArcGIS Engine Runtime deployments • ArcGIS Engine Runtime extensions—3D Analyst, Spatial Analyst, Geodatabase Update,Network Analyst,Arc Schematics and Maplex Also included in the program are: • Enterprise Software-ESRI Developer Network —One annual subscriptions to the ESRI Developer Network(EDN)for each year the ELA is in effect • Bing Maps:A maximum of 50,000 transactions per user, per year for all Desktop GIS software users (Additional transactions may be purchased via a subscription at then-current commercial pricing.An unlimited option may also be purchased separately.) • Virtual Campus (Web Training)— 10,000 dollars for standard ESRI—authored courses only (third-party authored courses not included) • Instructor-led training-Five percent discount on all commercially available courses at ESRI facilities Payment Terms for the ELA follow: 2010 2011 2012 Total Total Annual Fee $50,000 $60,000 $70,000 $180,000 All current departments, employees, and contractors of the organization will be eligible to use The software and services listed above. 2 The following key business terms and conditions will apply. • If your organization wishes to acquire and/or maintain ESRI software during the term of the agreement that is not included in this proposal,it may do so separately from this ELA at the ESRI pricing that is generally available for your organization for software and maintenance. • Software and services included in this proposal may only be deployed and used within the United States. • ESRI technology that may be embedded in third-party products that your organization licensed or may acquire is not included under this agreement. • The organization will establish a single point of contact for orders and deliveries and will be responsible for redistribution to eligible users. • The organization will establish a Tier 1 support center to field calls from internal users of ESRI software. The organization may designate up to six individuals who may directly contact ESRI for Tier 2 technical support. • ESRI will deliver two boxes of media • ESRI will provide up to 10 hardware keys,at no additional charge, upon your request. • The organization will provide an annual report of installed ESRI software to ESRI. • ESRI software updates that you are licensed to use will be shipped automatically as they become available. • The organization will act as an ESRI reference site and will permit ESRI to publicize its use of ESRI software and services. • The City of San Bernardino will work with an ESRI Press writer on a Press Release regarding their commitment to ESRI GIS technology and the intended use throughout the city . • The City of San Bernardino will develop and submit a presentation on the Value of GIS throughout the city at the 2011 Cal GIS conference or the 2011 CARO RUG. • The organization will receive five complimentary annual registrations to the ESRI International User Conference. • Subject to open records or public disclosure law,the details of this agreement will be confidential and may not be disclosed by the contracting parties. • ESRI reserves the right to adjust and collect sales and/or use tax at the actual date of invoicing. • Licenses are valid for the term of the ELA 3 To expedite your acceptance of this ELA offer: 1.Sign and return the signature page of the ELA with a Purchase Order of issue a Purchase Order that references this ELA Quotation and includes the following statement on the face of the Puchase Order "THIS PURCHASE ORDER IS GOVERNED BY THE TERMS AND CONDITIONS OF THE ESRI ELA AND ANY DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS IN OR WITH THIS PURCHASE ORDER SHALL NOT APPLY."And have it signed by an authorized representative of the organization. 2. On the first page of the ELA, identify the central point of contact/agreement administrator.The agreement administrator is the party that will be the contact for management of the software, administration issues, and general operations. Information should include name,title if applicable, address,phone number,and e-mail address. 3. In the Purchase Order, identify the"Ship to"and"Bill to" information for your organization. 4. Send the Purchase Order and agreement to the address noted below: ESRI Attn: Customer Service 380 New York Street Redlands, CA 92373-8100 Or e-mail servicerd!esri.com or fax documents to 909-307-3083 This proposal is valid for 30 days after the date received by the City of San Bernardino. ESRI and the City of San Bernardino have a long and rich history working together. I appreciate the opportunity to present you with this proposal; one that I believe will bring great benefits to your organization. Thank you very much for your consideration. Best regards, Jan Cunningham 4 [k(4, ENTERPRISE LICENSE AGREEMENT (E21412/08) ESRI,380 New York St.,Redlands,CA 92373-8100 USA•TEL 909-793-2853•FAX 909-793-5953 ESRI Contract number 2010ELA901 This Enterprise License Agreement(hereafter"ELA")is by and between the organization identified in the quotation ("Licensee")and Environmental Systems Research Institute,Inc. ("ESRI"),with offices at 380 New York Street,Redlands, California 92373-8100.This ELA is effective("Effective Date")as of the date of receipt of Licensee's Purchase Order citing this ELA.This ELA grants Licensee certain rights to use specific ESRI Software,Data,Web Services,and Documentation and provides maintenance over a limited,fixed period of time from the Effective•Date subject to payment of fees and the terms of this ELA. This ELA is composed of(i)this signature page,(ii)the ELA Terms and Conditions,(iii)Exhibit 1—Scope of Use(E300), and(iv)the ELA Quotation,which together constitute the sole and entire agreement of the parties as to the subject matter set forth herein.Licensee agrees that any different or additional terms or conditions in or with any Licensee Purchase Order shall not apply and the terms of this ELA shall govern. This ELA supersedes any previous agreements,proposals,presentations,understandings,and arrangements between the parties relating to such subject matter,which is the licensing of the Enterprise Software.Except as provided in Section 9.1 Future Versions, any modifications or amendments to this ELA must be in writing and signed by an authorized representative of each party. Licensee may accept this ELA by signing and returning this ELA with a Purchase Order or by issuing a Purchase Order signed by Licensee,which shall reference the ELA and shall include the following statement on the face of its Purchase Order: "THIS PURCHASE ORDER IS GOVERNED BY THE TERMS AND CONDITIONS OF THE ESRI ELA# 2010ELA901,AND ANY DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS IN OR WITH THIS PURCHASE ORDER SHALL NOT APPLY." Licensee will return this ELA and its Purchase Order to: Attn.:ESRI Customer Service,Dept., 380 New York Street, Redlands,CA 92373-8100;e-mail to service @esri.com;or fax to 909-307-3083. ACCEPTED AND AGREED: CITY OF SAN BERNARDINO '"'PROVED AS TO FORMS (Licensee) James F. Penman, By Signature City Attorney Printed Name: . Title: • Date: Licensee Contact Information Contact: Telephone: Address: Fax: City, State,ZIP: E-mail: ELA Quotation Number: ESRI Contract Number: Page 1 of 5 E214 12/08 ELA TERMS AND CONDITIONS reproduction, distribution, or publication. ESRI and its third-party licensors reserve all rights not specifically granted in this License ARTICLE 1—DEFINITIONS Agreement including the right to change and improve Web Services. Definitions.The terms used are defined as follows: ARTICLE 3—GRANT OF LICENSE • "Data" means any ESRI or third-party digital dataset(s) including, but not limited to, geographic vector data 3.1 Grant of License.Subject to the terms and conditions of this coordinates, raster,reports,or associated tabular attributes ELA, ESRI grants to Licensee a limited term, personal, licensed under this ELA. nonexclusive,nontransferable license solely to • "Deploy," "Deployed," or "Deployment" means to redistribute and install or the redistribution and installation a. Use, copy, and Deploy an unlimited quantity of the of the Enterprise Software or its having been redistributed Enterprise Software excluding ESRI Developer Network and installed by Licensee on Licensee's hardware. (1)for the term identified in this ELA and(2)for Licensee's • "Documentation" means all printed and digital materials own internal use. including, but not limited to, help files, user reference b. Deploy one subscription of the ESRI Developer Network documentation, training documentation, or technical for use by a single named developer for the term of this information and briefings. ELA. • "ELA Maintenance" means Tier 2 Support, updates, and c. Access and use any secure ESRI Web site resources patches provided by ESRI to Licensee for the Enterprise made available to Licensee for Licensee's internal use, Software. provided that Licensee follows ESRI's terms of use policy • "ELA Fee"means the fee set forth in the ELA Quotation. specified therein. All password or controlled access • "ELA Quotation" means the ELA offer letter and ESRI information provided by ESRI shall be treated as ESRI quote form. confidential information. • "Enterprise Software" means the Software, Data, Web Services, and Documentation identified in the ELA 3.2 Consultant Access. Subject to 3.1, Licensee may provide Quotation as Enterprise Software. access to the Enterprise Software to any consultant or contractor • "Incident" means a failure of the Software to operate of Licensee, provided consultants and contractors use is for the according to the Documentation in which such failure sole benefit of Licensee while (i) working on-site at Licensee's substantially impacts operational or functional performance. facilities or(ii)remotely using/accessing Enterprise Software from • "License Agreement" and "ELA" are used interchangeably Licensee's on-site computers or machines. Licensee shall be and mean the license terms and conditions including responsible for compliance by consultants or contractors with the Exhibit 1—Scope of Use (E300) that apply to Enterprise terms and conditions of this ELA. Licensee shall require Software provided to Licensee by ESRI under this consultant or contractor to discontinue use of and access to agreement. Enterprise Software upon completion of work for Licensee. • "Software" means the actual copy of all or any portion of ESRI's proprietary software technology, accessed or ARTICLE 4—SCOPE OF USE downloaded from an authorized ESRI Web site, or delivered on any media, in any format, including backups, 4.1 Permitted Uses updates, service packs, patches, hot fixes, or permitted merged copies. a. Licensee may install and store the Software, Data, and • "Samples" means sample code, sample applications, add- Documentation on electronic storage device(s). ons, or sample extensions of Software, Data, b. Licensee may make one(1) copy of the Software, Data, and Documentation,or Web Services. Documentation for archival purposes. Licensee may make • "Technical Support"means a process to attempt to resolve routine computer backups. reported Incidents through error correction; patches; hot c. Licensee may customize the Software using any(i) macro or fixes; workarounds; replacement deliveries; or any other scripting language, (ii) published application programming type of Software, Data, or Documentation corrections or interface(API),or(iii)source or object code libraries,but only modifications. to the extent that such customization is described in the • "Tier 1 Help Desk" means Licensee point of contact from Documentation. which all Tier 1 Support will be given to Licensee. d. Licensee may use, copy, or prepare derivative works of the • "Tier 1 Support"means the Technical Support provided by Documentation supplied in digital format and thereafter the Tier 1 Help Desk as the primary contact to Licensee in reproduce, display, and redistribute the customized attempted resolution of reported Incidents. documentation only for Licensee's own internal use.Portion(s) • "Tier 2 Support"means the Technical Support provided by of Documentation supplied in digital format merged with other ESRI to the Tier 1 Help Desk when the Incident cannot be software and printed or digital documentation are subject to resolved through Tier 1 Support. this ELA. Licensee shall include the following copyright • "Web Services" means software services or ESRI or third- attribution notice acknowledging the proprietary rights of ESRI party data provided by ESRI that perform geographic and its licensor(s): "Portions of this document include information system (GIS) functions,tasks,or data services intellectual property of ESRI and its licensor(s)and are used and are accessed over the Internet, excluding Virtual herein under license. Copyright©[Insert the actual copyright Campus. date(s)from the source materials]ESRI and its licensor(s).All rights reserved." ARTICLE 2—INTELLECTUAL PROPERTY RIGHTS AND RESERVATION OF OWNERSHIP 4.2 Uses Not Permitted The Enterprise Software are licensed and not sold. ESRI and its a. Except as provided herein,Licensee shall not sell,rent,lease, licensors own the Enterprise Software, which are protected by sublicense, lend, assign, or time-share the Enterprise United States and applicable international laws, treaties, and Software. Licensee shall not act as a service bureau or conventions regarding intellectual property and proprietary rights commercial application service provider (ASP) that allows including trade secrets. Licensee agrees to use reasonable third party access to the Enterprise Software. A commercial means to protect the Enterprise Software from unauthorized use, ASP means a Licensee who uses Enterprise Software for a Page 2 of 5 E214 12/08 site or service and operates the site or the service for a profit 6.2 Data and Web Services Disclaimer. The Data and Web or generates revenue by charging for access to the site or Services may contain some nonconformities, defects, errors, or service. omissions. THE DATA AND WEB SERVICES ARE PROVIDED b. Licensee shall not redistribute the Software to unauthorized "AS IS"WITHOUT WARRANTY OF ANY KIND. Without limiting third parties, in whole or in part, including, but not limited to, the generality of the preceding sentence,ESRI and its licensor(s) extensions, components, or DLLs, without the prior written do not warrant that the Data and Web Services will meet approval of ESRI. Licensee's needs or expectations, that the use of the Data and c. Licensee shall not reverse engineer, decompile, or Web Services will be uninterrupted, or that all nonconformities disassemble the Enterprise Software,except to the extent that can or will be corrected. ESRI and its licensor(s) are not inviting such activity is expressly permitted by applicable law reliance on this Data or Web Services, and Licensee should notwithstanding this restriction. always verify actual Data or Web Services. d. Except to the extent that applicable law prohibits this restriction,Licensee shall not make any attempt to circumvent 6.3 Special Disclaimer. SAMPLES AND HOT FIXES ARE the technological measure(s)that controls access to, or use DELIVERED "AS IS" WITHOUT WARRANTY OF ANY KIND. of,the Enterprise Software. LICENSEE ASSUMES ALL RISK AS TO THE QUALITY AND e. Licensee shall not redistribute the Software registration PERFORMANCE OF THE SAMPLES AND HOT FIXES. number/license authorization file(s), developer license file(s), or Web Services access codes to unauthorized third parties 6.4 Internet Disclaimer. THE PARTIES EXPRESSLY without the prior approval of ESRI. ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A f. Licensee shall not use the Software or Web Services to NETWORK OF PRIVATE AND PUBLIC NETWORKS,AND THAT transfer or exchange any material in where such transfer or (i)THE INTERNET IS NOT A SECURE INFRASTRUCTURE, exchange is prohibited by intellectual property laws or any (ii)THE PARTIES HAVE NO CONTROL OVER THE INTERNET, other applicable laws. AND (iii)NONE OF THE PARTIES SHALL BE LIABLE FOR g. Licensee shall not remove or obscure any ESRI or its DAMAGES UNDER ANY THEORY OF LAW RELATED TO THE licensor(s) patent, copyright, trademark, or proprietary rights DISCONTINUANCE OF OPERATION OF ANY PORTION OF notices contained in or affixed to the Enterprise Software. THE INTERNET OR POSSIBLE REGULATION OF THE h. Licensee shall not unbundle individual or component parts of INTERNET THAT MIGHT RESTRICT OR PROHIBIT THE the Software or Data for independent use. OPERATION OF THE WEB SERVICE. i. Hard-copy Documentation may not be copied. j. Licensee shall not use, transfer, redistribute, or Deploy 6.5 General Disclaimer. EXCEPT FOR THE ABOVE EXPRESS Enterprise Software outside of the United States. LIMITED WARRANTIES, ESRI DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND,EITHER EXPRESS OR IMPLIED, ARTICLE 5—TERM AND TERMINATION AND EXPIRATION INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A 5.1 Term. The term of the ELA shall be three (3)years from the PARTICULAR PURPOSE, NONINTERFERENCE, SYSTEM Effective Date, unless this ELA is terminated earlier as provided INTEGRATION,AND NONINFRINGEMENT OF INTELLECTUAL herein.The term of all licenses and the authorized period of use PROPERTY RIGHTS. ESRI DOES NOT WARRANT AND for all Enterprise Software Deployed shall be concurrent with the DISCLAIMS THAT THE ENTERPRISE SOFTWARE WILL MEET term of this ELA. No indefinite or perpetual term license grants LICENSEE'S NEEDS;THAT LICENSEES OPERATION OF THE are provided with this ELA. SAME WILL BE UNINTERRUPTED, ERROR FREE, FAULT TOLERANT, FAIL-SAFE; OR THAT ALL NONCONFORMITIES 5.2 Termination for Lack of Funds. Either party may terminate CAN OR WILL BE CORRECTED. SOFTWARE, DATA, WEB this ELA for Lack of Funds. Lack of Funds is the inability of SERVICES, AND DOCUMENTATION ARE NOT DESIGNED, Licensee to secure appropriation of funds through the legislative MANUFACTURED, OR INTENDED FOR USE IN or governing body's approval process for annual payments due. ENVIRONMENTS OR APPLICATIONS THAT MAY LEAD TO DEATH, PERSONAL INJURY, OR PHYSICAL PROPERTY/ 5.3 Termination for a Material Breach. Either party may ENVIRONMENTAL DAMAGE. ANY SUCH USE SHALL BE AT terminate this ELA for a material breach by the other party. The LICENSEE'S OWN RISK AND COST. breaching party shall be given a period of ten(10)days from date of written notice to cure any material breach. 6.6 Exclusive Remedy.Licensee's exclusive remedy and ESRI's entire liability for breach of the limited warranties set forth in this 5.4 No Use Upon Expiration or Termination.Upon expiration or Article 6 shall be limited, at ESRI's sole discretion, to termination of this ELA, all Enterprise Software Deployed shall (i)replacement of any defective media; (ii)repair,correction,or a terminate. Licensee shall cease access and use of Web Services workaround for the Software subject to the ESRI Support and clear Web Services client-side data cache and uninstall, Services Policy;or(iii)return of the license fees paid by Licensee remove, and destroy all Deployed Software, Data, and for the Software or Documentation that does not meet ESRI's Documentation and any whole or partial copies, modifications, limited warranty, provided that Licensee uninstalls, removes, and media, or merged portions in any form and execute and deliver destroys all copies of the Software or Documentation and evidence of such actions to ESRI. ELA Maintenance, Virtual executes and delivers evidence of such actions to ESRI. Campus access, and User Conference Registrations shall also terminate. ARTICLE 7—LIMITATION OF LIABILITY ARTICLE 6—LIMITED WARRANTIES AND DISCLAIMERS 7.1 Disclaimer of Certain Types of Liability. ESRI AND ITS LICENSOR(S) SHALL NOT BE LIABLE TO LICENSEE FOR 6.1 Limited Warranties. Except as otherwise provided in this COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR Article 6, ESRI warrants that (i) the unmodified Software will SERVICES; LOST PROFITS; LOST SALES OR BUSINESS substantially conform to the published Documentation and (ii)the EXPENDITURES;INVESTMENTS; BUSINESS COMMITMENTS; media upon which the Software, Data, and Documentation are LOSS OF ANY GOODWILL OR FOR ANY INDIRECT, SPECIAL, provided will be free from defects in materials and workmanship INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT under normal use and service for a period of ninety (90) days OF OR RELATED TO THIS ELA OR USE OF THE ENTERPRISE from the date of receipt. SOFTWARE, HOWEVER CAUSED ON ANY THEORY OF LIABILITY, WHETHER OR NOT ESRI OR ITS LICENSOR(S) Page 3 of 5 E214 12/08 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH ARTICLE 9—GENERAL PROVISIONS DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL 9.1 Future Versions. Updated or new Enterprise Software may PURPOSE OF ANY LIMITED REMEDY. require additional or revised terms and conditions. Terms and conditions subject to revision are limited to Article 1—Definitions, 7.2 General Limitation of Liability.EXCEPT AS PROVIDED IN Article 4—Scope of Use and Exhibit 1—Scope of Use(E300),or ARTICLE 8—INFRINGEMENT INDEMNITY, ESRI'S TOTAL any term as required by law. ESRI may provide notice of the CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES revisions to Licensee in writing or by posting them on ESRI's Web OF ACTION OF ANY KIND, INCLUDING, BUT NOT LIMITED site at www.esri.com/legal. The revisions shall be incorporated TO, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT into this ELA upon use of the updated or new Enterprise LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, Software. Should Licensee reject the revisions, then Licensee OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID shall not install or use the revised, updated, or new Enterprise BY LICENSEE FOR ENTERPRISE SOFTWARE PURSUANT TO Software. THIS ELA. 9.2 Export Control Regulations. Licensee expressly 7.3 Applicability of Disclaimers and Limitations. The parties acknowledges and agrees that Licensee shall not export, agree that ESRI has set its prices and entered into this ELA in reexport,transfer,or release the Enterprise Software, in whole or reliance upon the disclaimers and limitations set forth herein,that in part, to (i) any U.S. embargoed country (or to national or the same reflect an allocation of risk between the parties,and that resident of any U.S. embargoed country); (ii)any person on the the same form an essential basis of the bargain between the U.S. Treasury Department's list of Specially Designated parties. THESE LIMITATIONS SHALL APPLY Nationals; (iii)any person or entity on the U.S. Commerce NOTWITHSTANDING ANY FAILURE OF ESSENTIAL Department's Table of Denial Orders; or(iv)any person or entity PURPOSE OF ANY LIMITED REMEDY. to where such export, reexport, or provision violates any U.S. export control laws or regulations including, but not limited to,the ARTICLE 8—INFRINGEMENT INDEMNITY terms of any export license or licensing provision and any amendments and supplemental additions to U.S. export laws as 8.1 ESRI shall defend, indemnify, and hold harmless Licensee they may occur from time to time. from and against any loss, liability, cost, or expense, including reasonable attorneys' fees, which may be incurred by Licensee 9.3 Taxes and Fees. Sales or use taxes for the fees quoted are against any claims, actions, or demands by a third party alleging as required by law. The tax amount may change depending on that the Software infringes a U.S.patent,copyright,or trademark the time lapse between this quote and date of the invoice. ESRI provided will include applicable sales or use taxes on your invoice unless you provide proof with your order that your organization or use of a. Licensee promptly notifies ESRI in writing of the claim; the product is tax exempt. b. Licensee provides documents clearly describing the allegations of infringement; 9.4 No Implied Waivers.The failure of either party to enforce any c. ESRI has sole control of the defense of any actions and provision of this ELA shall not be deemed a waiver of the negotiations related to the defense or settlement of any provisions or of the right of such party thereafter to enforce that or claim;and any other provision. d. Licensee cooperates fully in the defense of the claim. 9.5 Severability. The parties agree that if any provision of this 8.2 If the Software is found to infringe a U.S.patent,copyright,or ELA is held to be unenforceable for any reason, such provision trademark, ESRI, at its own expense, may either(i)obtain rights shall be reformed only to the extent necessary to make the intent for Licensee to continue using the Software or (ii)modify the of the language enforceable. allegedly infringing elements of the Software while maintaining substantially similar software functionality or data/informational 9.6 Successor and Assigns. Licensee shall not assign, content. If neither alternative is commercially reasonable, the sublicense,or transfer Licensee's rights or delegate its obligations infringing items shall be returned to ESRI, the license shall under this ELA without ESRI's prior written consent, and any terminate,and Licensee shall uninstall the infringing items.ESRI's attempt to do so without consent shall be void.This ELA shall be entire liability shall then be to indemnify Licensee pursuant to binding upon the respective successors and assigns of the parties section 8.1 and to refund a portion of the fees paid by Licensee in to this ELA. the current fee payment period.The refund will be calculated for the time remaining for the fee payment period, starting from the 9.7 Survival of Terms. The provisions of Articles 2, 5, 6, 7, 8, notice date of infringement to the end of the fee payment period. and 9 of this ELA shall survive the expiration or termination of this ELA. 8.3 ESRI shall have no obligation to defend Licensee or to pay any resulting costs, damages, or attorneys'fees for any claims or 9.8 Equitable Relief. The parties agree that any breach of this demands alleging direct or contributory infringement of the ELA may cause irreparable damage and that,in the event of such Software by (i)the combination of or integration with a product, breach, in addition to any and all remedies at law, a party shall process,or system not supplied by ESRI;(ii)material alteration by have the right to seek an injunction,specific performance,or other anyone other than ESRI or contractors acting on behalf of ESRI; equitable relief in any court of competent jurisdiction. (iii) use after Licensee has been notified of possible infringement; or(iv) use after modifications are provided or a return is ordered 9.9 Governing Law. This ELA shall be governed by and by ESRI under section 8.2. construed in accordance with the laws of the state in which 8.4 In no event shall the indemnification set forth in this Article 8 Licensee is located without reference to conflict of laws principles, apply.4 I to any event shall the indemnification eixes icationes set forth in hereunder. except that U.S.federal law shall govern in matters of intellectual property. THE FOREGOING STATES THE ENTIRE OBLIGATION OF ESRI AND ITS DISTRIBUTOR WITH RESPECT TO ARTICLE 10—ELA MAINTENANCE INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. ELA Maintenance for Software provided under this ELA is included with the ELA Fee. ELA Maintenance includes standard Page 4 of 5 E214 12/08 • maintenance benefits specified in the most current applicable c. ESRI shall provide Licensee with up to ten (10) hardware ESRI U.S. Software Maintenance Program document (found at keys.Additional hardware keys may be ordered at the prices www.esri.com/legal) as modified by this Article 10—ELA in effect at the time of purchase. Maintenance. ELA Maintenance does not include Technical d. ESRI shall provide registration numbers or keycodes, as Support for Web Services. applicable, to activate the nondestructive copy protection program that enables the Software to operate. a. Tier 1 Support Provided by Licensee e. Licensee shall Deploy,install, configure,and track installation of the Software and Data. (1) Licensee shall provide Tier 1 Support through the Tier 1 Help Desk to all Licensee's authorized users. 11.2 Purchase Order Requirements (2) The Tier 1 Help Desk shall use analysts fully trained in the Software they are supporting. a. All orders pertaining to this ELA shall be processed through (3) At a minimum, Tier 1 Support shall include those Licensee's centralized point of contact. activities that assist Licensee in resolving how-to and b. The following information shall be included in each Purchase operational questions as well as questions on Order: installation and troubleshooting procedures. (4) Tier 1 Support analysts shall be the initial points of (1) Licensee name,ESRI customer number,if known,and contact for all questions and Incidents.Tier 1 Support bill-to and ship-to addresses analysts shall obtain a full description of each reported (2) Purchase Order number Incident and the system configuration from Licensee. (3) Applicable annual payment due This may include obtaining any customizations, code (4) On the face page of its Purchase Order (or ordering samples, or Data involved, if applicable, to the document), Licensee shall insert: THIS PURCHASE Incident.Analysts shall also use any other information ORDER IS GOVERNED BY THE TERMS AND and databases they may develop to satisfactorily CONDITIONS OF THE ESRI ELA, AND ANY resolve Incidents. DIFFERENT OR ADDITIONAL TERMS AND (5) If the Tier 1 Help Desk cannot resolve the Incident,an CONDITIONS IN OR WITH THIS PURCHASE authorized Tier 1 Help Desk individual may contact ORDER SHALL NOT APPLY." ESRI Technical Support. The Tier 1 Help Desk shall provide support in such a way as to minimize repeat ARTICLE 12—ENDORSEMENT AND PUBLICITY calls and make solutions to problems available to Licensee. This ELA shall not be construed or interpreted as an exclusive (6) Tier 1 Help Desk individuals identified by Licensee are dealings agreement or an endorsement of ESRI by Licensee. the only individuals authorized to contact ESRI directly Licensee agrees that upon execution of the ELA, ESRI may for Tier 2 Support. Licensee may revise named publicize the existence of this ELA with Licensee. individuals by written notice. ARTICLE 13—ADMINISTRATIVE REQUIREMENTS b. Tier 2 Support Provided by ESRI 13.1 OEM Licenses. If Licensee obtains Software, Data, Web (1) ESRI shall log calls received from the Tier 1 Help Services, or any component thereof as part of an original Desk individuals. equipment manufacturer (OEM) software program or product (2) ESRI shall attempt to resolve the Incident by assisting developed and licensed by an OEM business partner of ESRI, the Tier 1 Help Desk individuals. Licensee shall not be entitled to or seek any discount from the (3) When the Incident is resolved, ESRI shall OEM business partner or ESRI,directly or indirectly,as a result of communicate the information to the Tier 1 Help Desk or based on the availability of such Software, Data, or Web individuals, and the Tier 1 Help Desk shall Services,as Enterprise Software under this ELA.In addition,such disseminate the resolution to Licensee. Software, Data, Web Services, or any component thereof included in the OEM software program or product will be licensed ESRI may, at ESRI's sole discretion, make patches, hot fixes, or through the license agreement provided by the OEM business updates available for downloading from ESRI's Web site or partner and not through this ELA. deliver them on media. 13.2 Product Obsolescence. During the term of this ELA,some ARTICLE 11—ORDERING, ADMINISTRATIVE PROCEDURES, Enterprise Software items may become obsolete, may no longer DELIVERY,AND DEPLOYMENT be commercially offered, or may no longer be available for unlimited quantity Deployment. Licensee may continue to use 11.1 Purchase Orders,Delivery,and Deployment such Enterprise Software that has been Deployed for the term of the ELA, but updates for such obsolete Enterprise Software may a. Licensee shall issue a Purchase Order upon execution of the not be available. ESRI's Product Life Cycle Support Policy, ELA and annually thereafter in accordance with the payment available at http://support.esri.com/index.cfm?fa=knowledgebase schedule.Payment shall be due and payable within thirty(30) .productLifeCycles.gateway, defines the support phases and days of the anniversary date of the Effective Date, with the overall support plans. ELA Maintenance shall be subject to the initial payment due within thirty (30)days of execution of the Product Life Cycle Support Status, which can be found at ELA. http://support.esri.com/index.cfm?fa=software.gateway by b. Upon receipt of the initial Purchase Order from Licensee, selecting the product type, then clicking the Product Life Cycle ESRI shall deliver two (2) sets of media containing the link for specific product plans. Software, Data, and Documentation to Licensee for Deployment activities.ESRI shall ship the media to the ship-to 13.3 Renewal. Upon expiration of this ELA, the parties will address identified on the Purchase Order, FOB Destination, evaluate Licensee's requirements. Any follow-on ELA will be with shipping charges prepaid. Licensee may purchase offered in accordance with license terms and condition and pricing additional media sets at the prices in effect at the time of then in effect and based upon Licensee's then current population purchase. count. Page 5 of 5 E214 12/08 EXHIBIT Il :� :1 SCOPE OF USE `- 1, :ail (E300 7/09) ESRI,380 New York St.,Redlands,CA 92373-8100 USA•TEL 909-793-2853•FAX 909-793-5953 The scope of use for the ESRI Software,Data,Web Services,and Documentation identified below is described in the applicable footnotes identified in parentheses. Desktop GIS • NetEngine Internet(5) • ArcReader(20 and 25) • ArcGIS Business Analyst Server Developer(6,25, • ArcView(1 or 2 and 25 and 44) 33,35,and 51) • ArcEditor(1 or 2 and 25,26,and 44) • ArcInfo(2,25,26,and 44) GIS Viewers and Connectors • ArcGIS Desktop Extensions(7) • Maplt(11,25,31,33,35,49,and 50) • ArcView 3.x and Extensions(1,7,and 17) • ArcExplorer-Java and Windows Editions (20 and 25) Server GIS • ArcGIS Explorer(20 and 25) • ArcGIS Server and Extensions • ArcGIS for AutoCAD(1,20,and 25) - Workgroup(either 3 or 5 and 8,9,25,28,29, • Geoportal Clients for ArcGIS(7,20,and 52) 30,32,38,39,40,and 45) - 'Enterprise(either 3,4,or 5 and 8,9,25,27,31, Business GIS 38,39,40,and 45) • ArcGIS Business Analyst(1 or 2 and 25,45, - ArcGIS Server Geoportal Extension(either 4 or and 48) 5 and 7,47,and 52) • BusinessMAP(1 and 25) • ArcGS • ArcLogistics(either 1 or 2 and 25) - ArcGS and Extensions(either 3,4,or 5 and 8, • ArcLogistics Server(5,8,9,21,25,28,39,40, 10,and 31) and45) - ArcIS ArcMap Server(either 3,4,or 5 • ArcLogistics Navigator(1,25,and 46) and 31) • ArcLogistics Navigator Deployments(1, 15, • Tracking Server(either 4 or 5 and 31) and 16) • ArcGIS Server Image Extension(either 3,4,or 5 and 8,31,and 42) Cartographic Production - ArcGIS Server Image Extension Service Editor • Maplex(1) (1) • Production Line Tool Set(PLTS)for ArcGIS,GIS • RouteMAP IMS(either 3,4,or 5 and 8,25,and 31) Data ReViewer,Map Production System-Atlas, • ArcGIS Business Analyst Server(5,8,9,21,25, Job Tracking for ArcGIS(JTX)(either 1 or 2),Job 28,31,39,40,45,and 48) Tracking for ArcGIS Server(either 4 or 5 and 7) Mobile GIS - Web Services • ArcPad(1, 12, 13,and 25) • ArcGIS Online(6,25,33,34,and 35) • ArcPad Application Builder(1 and 25) • ArcGIS Mobile Deployments(1, 15, 16, and 25) Data • ESRI Data and Maps(either I or 5 and 23 and 37) Developer GIS • ESRI Data(either 1,2,or 5 and 25 and 48) • ESRI Developer Network(EDN) Software,Web - Demographic,Consumer Spending,Market Services,and Data(6,7,24,25,26,33, 34,35, Potential,Retail MarketPlace,Business,Traffic, and 36) Shopping Center,Cable Boundaries,Banking, • ArcGIS Engine Developer Kit and Extensions and Crime (1 and 14, 15,22,25,26,and 43) • Tapestry Segmentation(either 1,2,or 5 and 21 and • ArcGIS Engine Runtime and Extensions(1, 15,22, 48) 25,and 26) • Address Coder(either 1,2,or 5 and 21,22,25,and • MapObjects-Windows Edition(1, 14, 15, 16, 48) and 18) • Sourcebook•America(1 and 21) • MapObjects-Java Edition(1,5,8, 15, 18,and 19) • ArcGIS Data Appliance(6,23,25,and 41) • MapObjects LT(1, 14,and 16) • StreetMap Premium(either 1,2,4,or 5 and 6,23, • NetEngine(1,5,and 15) and 25) Page 1 of 4 E300 7/09 1. "Single Use License."Licensee may permit a single authorized end user to install and use the Software,Data,and Documentation on a single computer for use by that end user on the computer on which the Software is installed.Remote access is not permitted.Licensee may permit the single authorized end user to make a second copy for end user's exclusive use on a portable computer as long as only one(1) copy of the Software,Data,and Documentation is in use at any one(1)time 2. "Concurrent Use License."Licensee may install and use the Software,Data,and Documentation on computer(s)on a network,but the number of simultaneous users may not exceed the number of licenses acquired. 3. "Development Server License."Licensee may install and use the Software on a single computer to design and build applications that interface with or utilize server Software as described in the Documentation. 4. "Staging Server License." In addition to the Development Server License rights,Licensee may use and install the Software for the following purposes:user acceptance testing, performance testing,load testing of other third-party software,staging new commercial data updates,and training activities. 5. "Deployment Server License." In addition to the Staging Server License rights,Licensee may install and use the Software or Data to provide services to multiple users on the same or other computer(s). 6. Provided only as a Term License. 7. Extensions to Software programs follow the same scope of use as that granted for the corresponding Software programs. 8. The administration tools for the Software may be copied and redistributed throughout Licensee's organization. 9. User-developed ArcGIS Server administration tools may be copied throughout Licensee's organization,but the ArcCatalog application(found in ArcGIS Desktop)may not be copied. 10. The ArcIMS license includes the right to deploy MapObjects—Windows Edition applications on the Internet or intranet. Licensee shall not develop client/server solutions with the ArcIMS Java Archive(JAR)files without a license for the MapObjects—Java Edition Developer Kit. 11. The Software is licensed per server.The licensed server is the server on which the Spatial Data Service is installed. Licensee may install and use the Software to provide services to multiple users on the same or other computer(s). 12. ArcPad SOFTWARE IS NOT LICENSED FOR NAVIGATIONAL USE. 13. "Dual Use License"means the Software may be installed on a desktop computer and used simultaneously with either a personal digital assistant(PDA)or handheld mobile computer as long as the Software is only used by a single individual at any one(1)time. 14. Developers must include the following attribution with any deployed MapObjects application: "Portions of this computer program are owned by LizardTech,Inc.,and are Copyright© 1995-2002 LizardTech,Inc.,and/or the University of California.All rights reserved.U.S.Patent No.5,710,835." 15. Deployment licenses for desktop or Internet application(s)may be subject to payment of additional license fees. 16. Licensee may deliver applications to its sublicensee(s)provided Licensee uses a written sublicense agreement that protects ESRI's rights in its Software,Data,Web Services,and Documentation to the same extent as the ESRI License Agreement including,but not limited to,the following terms: a. Sublicensee may not reverse engineer,decompile,or disassemble the ESRI Software,Data,Web Services,or Documentation,except to the extent permitted by applicable law;copy for commercial use;transfer;or assign its rights under the license grant; b. Sublicensee may not use any ESRI Software,Data, Web Services,or Documentation, in whole or in part, separate from Licensee's executable application;and c. Third-party dependent or required components are redistributable subject to permission from the owner or author. 17. Licensee may use Business Objects Crystal Reports software only with the ArcView 3.x Software with which it was acquired and subject to the Crystal Reports License Agreement available on the media.Licensee may not use a software program or system to cache or queue report requests. 18. The deployment license is per application per computer. 19. The MapObjects—Java Edition contains Java Archive files,which indicate they are authentic ESRI-certificated files when used over the Internet.Licensee shall not use ESRI certification or reference ESRI as a source of trusted content in any modified MapObjects Java Archive files.Licensee may deploy the unmodified Java class ESRI certified libraries as an integral part of the Licensee's application(s). 20. Licensee may reproduce and deploy the Software provided all the following occur: (a)The Software is reproduced and deployed in its entirety;(b)a license agreement accompanies each copy of the Software that protects the Software to the same extent as the ESRI License Agreement,and the recipient agrees to be bound by the terms and conditions of the license agreement; (c)all copyright and trademark attributions/notices are reproduced; and(d)there is no charge or fee attributable to the use of the Software. Page 2 of 4 E300 7/09 21. Licensee shall not withhold any substantial right(e.g.,extension of credit)from any individual based solely on the individual's place of residence,as profiled in the Tapestry Segmentation system. 22. (a)ArcGIS Engine Runtime licenses shall not be used for Internet and Server development and deployment.(b)An end user must license either ArcGIS Engine Runtime Software or other ArcGIS Desktop Software(ArcView,ArcEditor,or Arclnfo)to obtain the right to run an ArcGIS Engine application on one(1)computer.(c)The ArcGIS Engine Runtime extensions shall not be used in combination with ArcGIS Desktop Software to run ArcGIS Engine applications.A single user can have multiple applications installed on one(1)computer for use only by that end user. 23. Licensee may redistribute the Data as described in the Redistribution Rights Matrix available at http://www.esri.com/ legal!, in the Help system,or in supporting metadata files,subject to the specific attribution descriptions and requirements for the dataset accessed. 24. EDN Software,Web Services,and Data may only be used by one(1)named developer per subscription solely for the purposes of research,development,testing,and demonstration of a prototype application.EDN Software and Data may be installed on multiple computers for use by any named EDN developer. 25. Use of included third-party owned data shall be subject to the Use of Data Restrictions found at http://www.esri.com! legal!for the specific Data accessed.The Use of Data Restrictions may be modified by ESRI from time to time.If a modification is unacceptable to Licensee,Licensee may cancel a subscription upon written notice to ESRI,or discontinue use of the Data or Web Services,as applicable.If Licensee continues to use the Data or Web Services, Licensee will be deemed to have accepted the modification. 26. An ArcSDE Personal Edition geodatabase is restricted to four(4)gigabytes of Licensee data. 27. ArcGIS Server Web ADF Runtime Software may not be deployed independently of Licensee's ArcGIS Server Enterprise configuration. 28. Limited to ten(10)concurrent end users of non ArcGIS Server applications.This restriction includes use of ArcGIS Desktop products,ArcGIS Engine products,and third-party applications that connect directly to any ArcGIS Server geodatabase.There are no limitations on the number of connections from Web applications. 29. Can only be used with SQL Server 2005/2008 Express. 30. Restricted to a maximum total of four(4)gigabytes of Licensee data. 31. Redundant Software installation(s)for failover operations may be implemented during the period the primary site is nonoperational.The redundant Software installation(s)shall remain dormant,except for system maintenance and updating of databases,while the primary site or any other redundant site is operational. 32. No redundant Software installation is permitted. 33. ArcGIS Online may only be utilized in conjunction with ArcGIS Desktop,ArcGIS Server(including the Web ADF), ArcGIS Mobile,ArcGIS Explorer,ArcGIS Business Analyst Server Developer,and ESRI Maplt Software,and the ArcGIS APIs(including JavaScriptTM,Adobe®Flex®,and Microsoft" SilverlightTM/WPFTM).Licensee's access and use of ArcGIS Online Standard Services shall be subject to Licensee's consent to the terms and conditions of ESRI Web Site Terms of Use Agreement(G-577)found at http://www.ersi_com/legal/.ArcGIS Desktop Licensees that are current on maintenance may access and use Microsoft®Bing MapsTM subject to Licensee's consent to the terms and conditions of Bing Maps for ArcGIS Desktop Users Services Agreement(G-600)found at http:/!www.esri.com/legal/. 34. Licensee's organization is limited to the number of specified credits,transactions,geography,or number of users as described in the online product description. 35. Licensed end users shall not share the client-side data cache derived from ArcGIS Online with other licensed end users or third parties. 36. Licensee may not download or store resulting data or information except for results derived from using ArcWeb Services Address Manager. 37. Data provided with StreetMap USA may be used for mapping,geocoding,and routing purposes but is not licensed for dynamic routing purposes.For instance,StreetMap USA may not be used to alert a user about upcoming maneuvers (such as warning of an upcoming turn)or calculating an alternate route if a turn is missed. 38. The ArcGIS Server 3D extension included with ArcGIS Server Standard and Advanced(Workgroup or Enterprise)may only be used for generating globe data cache(s)or publishing a globe document as an ArcGIS Globe Service.No other use of the ArcGIS Server 3D extension Software is permitted with ArcGIS Server Standard.The ArcGIS Server 3D extension can be used with ArcGIS Server Advanced if the additional license fees for the 3D extension have been paid. 39. Any editing functionality included with ArcGIS Server is not permitted for use with ArcGIS Server Basic(Workgroup or Enterprise). 40. Geospatial Enterprise JavaBeans(EJB)provided with ArcGIS Server(Workgroup or Enterprise)are permitted for use only with ArcGIS Server Advanced. 41. Licensee may only use Data from a single state with the Single State version of ArcGIS Data Appliance.This restriction applies to a large-scale(i.e.,scale levels below 1:100,000)street map,transportation layer,boundaries and places layer, and one(1)-meter or better resolution imagery included in the USA Collection.This restriction does not apply to the Page 3 of 4 E300 7/09