HomeMy WebLinkAboutESRI PROFESSIOAL SERVICES FOR THE INFORMATON TECHNOLOGY DEPTesr�•
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1. DEFINITIONS
Esri, 380 New York St., Redlands, CA 92373 -8100 USA • TEL 909 - 793 -2853 • FAX 909 - 793 -3034
IMPLEMENTATION SERVICES ADDENDUM
FOR SERVICES PACKAGES
"Commercial off the Shelf Software" or "COTS Software" means all or any portion of Esri's proprietary software
technology accessed or downloaded from an authorized Esri Web site or delivered on any media in any format, including
backups, updates, service packs, patches, hot fixes, or permitted merged copies, available under license to the general public.
"Services Output" means any output produced as a result of the Services provided by Esri under this Agreement. Services
Output can include, but is not limited to, reports, training materials, and custom software code.
"Map Data" means any digital dataset(s) including geographic, vector data, coordinates, raster, or associated tabular
attributes supplied by either party for use in the performance of this Agreement.
"Services" means consulting support being performed by Esri in exchange for compensation from the Licensee.
"Services Package" means a predefined unit of Services provided at a firm fixed price as described in Exhibit A to
Implementation Services Addendum for Services Packages, ArcGIS Server Jumpstart.
2. RESERVATION OF OWNERSHIP AND GRANT OF LICENSE
Except as specifically granted in this Agreement, Esri or its licensors own and retain all right, title, and interest in Services
Output. Subject to the terms and conditions set forth in this Agreement, Esri hereby grants to Licensee a nonexclusive,
royalty -free, worldwide license to use, modify, and/or reproduce the Services Output in connection with Licensee's
authorized use of the Esri COTS Software.
3. PATENTS AND INVENTIONS
Each party shall retain title to any inventions, innovations, and improvements ( "Inventions ") made or conceived solely by its
principals, employees, consultants, or independent contractors (hereinafter called "Inventors ") during the term of this
Agreement. The parties shall jointly own any Inventions made or conceived jointly by Inventors from both parties.
Except as provided in the next paragraph, where Inventions are jointly owned, each party shall share equally the costs of
acquiring protection for the Inventions and furnish the other joint owner with assistance reasonably required for acquiring
protection.
A joint owner ( "Assigning Owner ") electing not to acquire or maintain protection of any Inventions in any country or
countries shall assign its rights in such Inventions to the other joint owner ( "Beneficial Owner ") as is necessary to enable the
Beneficial Owner to protect such Inventions in such country or countries at its expense and for its exclusive benefit. In such
event, the Assigning Owner shall make available to the Beneficial Owner the name(s) of Assigning Owner's Inventors and
shall otherwise cooperate with the Beneficial Owner in order to assist the Beneficial Owner in protecting such Inventions.
The Beneficial Owner shall reimburse the Assigning Owner for all reasonable out -of- pocket expenses incurred in rendering
such assistance. If any such Inventions are so protected by the Beneficial Owner, then the Assigning Owner shall have a
license with respect to the subject matter of such protected Inventions in such country or countries.
Neither party may license, transfer, sell, or otherwise alienate or encumber its interest in jointly owned Inventions without the
written consent of the other party, which shall not be unreasonably withheld by either party.
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4. COMPENSATION
The total firm fixed price for the Services Package is $8,000.00. Services are provided and invoiced on a firm fixed price
basis and the only deliverable is consulting time. Esri will invoice Licensee for all Services Packages ordered upon the
issuance of a valid Purchase Order. The Purchase Order shall confirm the quantity and firm fixed price of the Services
Packages ordered, as described in the Esri proposal or quotation, and reference these terms and conditions. Esri standard
payment terms are Net -30 days from receipt of an Esri invoice. Payment shall be made to the Esri address identified on
original Esri invoices. For Services provided beyond the date the quote is effective or delivered in a new calendar year, Esri
reserves the right to increase the Services Package price in accordance with Esri's most current price schedule. Esri's
obligation for completion of the Services is limited to the hours outlined in the Services Package descriptions within Esri's
statement of work. If additional time is required to complete Licensee's goals or activities set forth in the applicable statement
of work, Esri and Licensee will amend the Purchase Order, as mutually agreed, by increasing the quantity of Service
Packages ordered and issuing a new, or amended, Purchase Order. Esri may, at its sole discretion, stop work in order to avoid
exceeding the total hours allotted in the applicable Services Package Any unused hours or travel expenses remaining after
the performance of a Services Package will expire and will not be available for performance at a later date. If funded Services
Packages have not been performed within twelve (12) months of the Esri invoice date, the Services Package will expire and
no refund will be provided. Any election to amend and add Services Packages shall not affect the rights or obligations of the
parties under this Agreement.
5. LIMITED WARRANTY AND DISCLAIMER OF WARRANTIES
Esri warrants for a period of thirty (30) days from the date of performance that the Services will conform to the professional
and technical standards in the software industry. During the limited warranty period, Licensee may require Esri to re- perform
the Services, at no additional cost to the Licensee, if the Services do not substantially conform to the professional and
technical standards of the software industry. Services Output is provided "AS IS" without warranty of any kind.
Disclaimer of Warranties
A. WITH THE EXCEPTION OF THE LIMITED WARRANTY SET FORTH IN THIS ARTICLE, ESRI DISCLAIMS
AND THIS AGREEMENT EXPRESSLY EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
B. IN ADDITION TO AND WITHOUT LIMITING THE PRECEDING PARAGRAPH, ESRI DOES NOT WARRANT
IN ANY WAY MAP DATA. MAP DATA MAY NOT BE FREE OF NONCONFORMITIES, DEFECTS, ERRORS,
OR OMISSIONS; BE AVAILABLE WITHOUT INTERRUPTION; BE CORRECTED IF ERRORS ARE
DISCOVERED; OR MEET LICENSEE'S NEEDS OR EXPECTATIONS. LICENSEE SHOULD NOT RELY ON ANY
MAP DATA UNLESS LICENSEE HAS VERIFIED THE MAP DATA AGAINST ACTUAL DATA FROM
DOCUMENTS OF RECORD, FIELD MEASUREMENT, OR OBSERVATION.
6. LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY
IN NO EVENT SHALL ESRI BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS
OR SERVICES; LOST PROFITS; LOST SALES; OR BUSINESS EXPENDITURES; INVESTMENTS; BUSINESS
COMMITMENTS; LOSS OF ANY GOODWILL; OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY,
CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF, OR RELATED TO, THIS AGREEMENT,
HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY, EVEN IF ESRI HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. ESRI'S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL
CAUSES OF ACTION OF ANY KIND SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID BY THE
LICENSEE FOR THE PORTION OF THE SERVICES UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7. CONFIDENTIALITY
The Services Output is Esri confidential information and Licensee shall preserve and protect the confidentiality of said
Services Output. Insofar as its rights may be legally restricted, Licensee agrees not to reverse engineer or decompile custom
software delivered only in object code, executable code, or similar formats (collectively, "Secure Formats "). For custom
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software delivered in source code or other human - readable formats, Licensee shall have met its obligations under this
Agreement if its disclosure of custom software is limited to custom software in Secure Formats, provided that the means for
reverse engineering, decompiling, or disassembling such custom software is withheld from such disclosure, and the person or
entity in receipt of such custom software similarly agrees not to perform such acts or allow others to do so.
Except as provided in the preceding paragraph, Licensee shall not disclose the Services Output to employees or third parties
without the advanced written consent of Esri. However, Licensee may, without such consent, make such disclosures to
employees to the extent reasonably required to allow Licensee to use the Services Output in a manner authorized under
applicable licenses. Before disclosing all or any portion of the Services Output to employees or third parties as permitted in
the preceding sentence, Licensee shall inform such employees or third parties of the obligations in this Agreement and obtain
their agreement to be bound by them.
8. EXPORT CONTROLS
The disclosures permitted under Article 7, Confidentiality, shall not relieve Licensee of its obligation to maintain the Services
Output in confidence and comply with all applicable laws and regulations of the United States including, without limitation,
its export control laws. Licensee expressly acknowledges and agrees that Licensee shall not export, reexport, transfer, or
release Services Output in whole or in part, to (i) any U.S. embargoed country (or to a national or resident of any U.S.
embargoed country); (ii) any person on the U.S. Treasury Department's list of Specially Designated Nationals; (iii) any
person or entity on the U.S. Commerce Department's Denied Persons List, Entity List, or Unverified List; or (iv) any person
or entity where such export or reexport violates any U.S. export control laws or regulations including, but not limited to, the
terms of any export license or license exception and any amendments and supplemental additions to U.S. export laws as they
occur.
9. GENERAL PROVISIONS
9.1 Nonhire of Esri Personnel. Licensee will not directly solicit for hire any employee(s) of Esri's technical staff, who is
(are) associated with Services called for under this project, and for a period of one (1) year after completion of the project. In
the event the foregoing provision is breached, liquidated damages equal to twelve (12) months of the Esri employee's
compensation plus any legal expenses associated with the enforcement of this provision shall be paid by the Licensee to Esri.
The foregoing shall in no way restrict Licensee from publicly advertising positions for hire in newspapers, professional
magazines, or Internet postings.
9.2 Taxes. Services provided are quoted exclusive of all state; local; value -added or other taxes, customs, or duties; or other
charges (other than income taxes payable by Esri). In the event such taxes and/or charges become applicable to Esri's
Services or Services Output, Licensee shall pay any such applicable tax upon receipt of written notice that such tax(es) is /are
due.
9.3 UCC Inapplicability. Services provided under this Agreement will not be governed by the Uniform Commercial Code
(UCC) and will not be deemed "goods" within the definition of the UCC.
9.4 Order of Precedence. These terms and conditions supersede those outlined in any Licensee ordering or authorizing
documents such as purchase orders. Any additional terms or conditions in Licensee ordering or authorizing documents are
void and may be incorporated into this Agreement only via written amendment signed by both parties to be binding.
9.5 Assignment and Delegation. Esri may, in whole or in part, assign any of its rights or delegate any performance under
this Agreement, provided that Esri shall remain responsible for the performance it delegates. This Agreement binds and
benefits successors or assigns permitted under this Article.
9.6 Equitable Relief. Licensee agrees that any breach of this Agreement by Licensee may cause Esri irreparable damage and
that, in the event of such breach, in addition to any and all remedies at law, Esri shall have the right to seek an injunction,
specific performance, or other equitable relief in any court of competent jurisdiction to prevent violation of these terms and
without the requirement of posting a bond or undertaking or proving injury as a condition of relief.
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9.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia
without reference to its conflict of laws principles, and Esri agrees that any disputes arising out of this Agreement shall be
decided by the Superior Court of Richmond County, Georgia.
9.8 Temporary Suspension or Delay of Performance of Contract. To the extent that it does not alter the scope of this
agreement, Augusta, GA may unilaterally order a temporary stopping of the work, or delaying of the work to be performed
by Esri under this agreement.
9.9 A. Termination for Convenience by Licensee. Licensee may terminate this Agreement at any time on
thirty (30) days' written notice to Esri and upon payment to Esri of all amounts due to date pursuant to this
Agreement, including reasonable termination expenses and the pro rata contract price for the Services affected.
B. Termination for Cause by Licensee. Licensee shall have the right, in addition and without prejudice to any other
rights or remedies, to terminate this Agreement for any material breach of this Agreement by Esri that is not cured
within fifteen (15) days of receipt by Esri of a notice specifying the breach and requiring its cure.
C. Termination for Cause by Esri. Esri may terminate this Agreement immediately upon written notice to Licensee in
the event that one or more of the following occur:
i. Licensee defaults under this Agreement three (3) or more times within any six (6) -month period, regardless of
whether such defaults are cured;
ii. Licensee engages in the unauthorized use of the COTS Software;
iii. Licensee engages in the unauthorized use, reproduction, or disclosure of Services Output;
iv. Licensee breaches any provision of this Agreement and there is no possibility of cure;
v. Licensee fails to pay after ten (10) days' written notice the amounts due to Esri pursuant to the "Compensation"
Article 4 of this Agreement.
9.10 Defective Pricing. To the extent that the pricing provided by Esri is erroneous and defective, the parties may, by
agreement, correct pricing errors to reflect the intent of the parties.
9.11 Specified Excuses for Delay or Non - Performance. Esri is not responsible for delay in performance caused by acts of
nature, strikes, lockouts, accidents, or other events beyond the control of Esri. In any such event, the contract price and
schedule shall be equitably adjusted.
9.12 Hold Harmless. Notwithstanding any other provisions of this agreement, Esri shall indemnify and hold harmless
Augusta, GA, and its employees and agents (collectively the "Indemnified Parties ") from and against any and all liabilities,
claims, judgments, damages, and settlements, including all reasonable costs, expenses, and attorneys' fees, arising out of any
action or claim for bodily injury, death or property damage (except for databases not subject to a reasonable backup program)
brought against any of the Indemnified Parties to the extent arising from any negligent act or omission or willful misconduct
by Esri, its subcontractors or their directors, officers, employees or agents.
9.13 Prohibition against Contingent Fees. Esri is prohibited from directly or indirectly advocating in exchange for
compensation that is contingent in any way upon the approval of this contract or the passage, modification, or defeat of any
legislative action on the part of the Augusta, Georgia Commission. Esri shall not hire anyone to actively advocate in
exchange for compensation that is contingent in any way upon the passage, modification, or defeat of any contract or any
legislation that is to go before the Augusta, Georgia Commission.
9.14 Georgia Prompt Pay Act Not Applicable. The terms of this agreement supersede any and all provisions of the Georgia
Prompt Pay Act.
9.15 Acknowledgement Regarding Contractual Obligations of Augusta, Georgia. Esri acknowledges that this contract
and any changes to it by amendment, modification, change order or other similar document may have required or may require
the legislative authorization of the Board of Commissioners and approval of the Mayor. Under Georgia law, Esri is deemed
to possess knowledge concerning Augusta, Georgia's ability to assume contractual obligations and the consequences of Esri's
provision of goods or services to Augusta, Georgia under an unauthorized contract, amendment, modification, change order
or other similar document, including the possibility that Esri may be precluded from recovering payment for such
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unauthorized goods or services. Accordingly, Esri agrees that if it provides goods or services to Augusta, Georgia under a
contract that has not received proper legislative authorization or if Esri provides goods or services to Augusta, Georgia in
excess of the any contractually authorized goods or services, as required by Augusta, Georgia's Charter and Code, Augusta,
Georgia may withhold payment for any unauthorized goods or services provided by Esri. Esri assumes all risk of non-
payment for the provision of any unauthorized goods or services to Augusta, Georgia, and it waives all claims to payment or
to other remedies for the provision of any unauthorized goods or services to Augusta, Georgia, however characterized,
including, without limitation, all remedies at law or equity." This acknowledgement shall be a mandatory provision in all
Augusta, Georgia contracts for goods and services, except revenue producing contracts.
9.16 Georgia E- Verify Requirements. All contractors and subcontractors entering into contracts with Augusta, Georgia for
the physical performance of services shall be required to execute an Affidavit verifying its compliance with O.C.G.A. § 13-
10-91, stating affirmatively that the individual, firm, or corporation which is contracting with Augusta, Georgia has registered
with and is participating in a federal work authorization program. Esri agrees to provide their E- Verify number and to be in
compliance with the electronic verification of work authorized programs operated by the United States Department of
Homeland Security or any equivalent federal work authorization program operated by the United States Department of
Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of
1986 (IRCA), P.L. 99 -603, in accordance with the applicability provisions and deadlines established in O.C.G.A. § 13 -10 -91
and shall continue to use the federal authorization program throughout the contract term. Additionally, Esri agrees that,
should it employ or contract with any subcontractor(s) in connection with the physical performance of services pursuant to its
contract with Augusta, Georgia Esri will secure from such subcontractor(s) each subcontractor's E- Verify number as
evidence of verification of compliance with O.C.G.A. § 13 -10 -91 on the subcontractor affidavit provided in Rule 300- 10 -01-
.08 or a substantially similar form. Esri agrees to maintain records of such compliance and provide a copy of each such
verification to Augusta, Georgia at the time the subcontractor(s) is retained to perform such physical services.
9.17 Right to Inspect Premises. Augusta, Georgia may, at reasonable times, inspect the part of the plant, place of business,
or work site of Esri or any subcontractor of Esri or subunit thereof which is pertinent to the performance of any contract
awarded or to be awarded by Augusta, Georgia.
9.18 Local Small Business Language. In accordance with Chapter 10B of the AUGUSTA, GA. CODE, Esri agrees to
collect and maintain all records necessary to for Augusta, Georgia to evaluate the effectiveness of its Local Small Business
Opportunity Program and to make such records available to Augusta, Georgia. The requirements of the Local Small Business
Opportunity Program can be found at www.augustaga.gov. In accordance with AUGUSTA, GA. CODE § 1- 10- 129(d)(7),
the contractor is required to provide local small business utilization reports. Esri shall report to Augusta, Georgia the total
dollars paid to each local small business on each contract, and shall provide such payment affidavits, regarding payment to
subcontractors as may be requested by Augusta, Georgia. Such documents shall be in the format specified by the Director of
minority and small business opportunities, and shall be submitted at such times as required by Augusta, Georgia. Failure to
provide such reports within the time period specified by Augusta, Georgia shall entitle Augusta, Georgia to exercise any of
the remedies set forth, including but not limited to, withholding payment. Esri will not be utilizing any local small business
pursuant to this Agreement. Therefore, all requirements and reporting set forth in this Article are not applicable.
9.19 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties as to the subject matter set
forth herein and supersedes any previous agreements, understandings, and arrangements (including any attached purchase
order terms and conditions) between the parties relating to such subject matter. The undersigned hereby acknowledges and
represents that he /she has read and understands this Agreement and has the authority to bind his/her organization to these
terms and conditions. An executed Agreement shall constitute a duplicate if it is transmitted through electronic means, such
as fax or e-mail, and reflects the signing of the document by Licensee. Duplicates are valid and binding even if an original
paper document bearing Licensee's original signature is not delivered.
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AUGUSTA, ORGIA (" •censee ")
By: � Date:
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Municipal Building
530 Greene Street, 8th Floor !,
Augusta, Georgia 30901
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EXHIBIT A TO
IMPLEMENTATION SERVICES ADDENDUM
FOR SERVICES PACKAGES
ArcGIS Server Jumpstart
ARCGIS SERVER JUMPSTART — UP TO 2 SERVERS. The ArcGIS Server Jumpstart Service provides up to 3 days of on-
site installation and configuration support for ArcGIS Server software on up to 2 Licensee provided physical or virtual
servers by 1 Esri Consultant. If installation and configuration are completed prior to the completion of the 3 day engagement,
any additional remaining on -site time can focus on standard ArcGIS Server technology topics such as: Setup and
Configuration, Services, Administration and Diagnostics, Data Sources, Caching, Performance and Scalability
Considerations, and Enterprise GIS Resource Overview. Licensee will be provided a jumpstart prerequisite and checklist
document prior to the on -site visit. The price includes airfare, hotel, car rental, per diem, and other direct costs. On -site
support will be provided at a mutually agreed upon customer location during one trip within the United States on consecutive
business days during a single work week.
This Services Package requires Licensee to prepare for Esri's visit. The preparation requirements are outlined at
http: / /www.Esri.com/legal /serviceagreements. html and all Services will be provided in accordance with the requirements
and assumptions provided therein. Scheduling will be based on resource availability. Topics outside the scope of the ArcGIS
Server Jumpstart include but are not limited to: Migration of Databases and Applications, Advanced Security, High
Availability and Failover, Production Level Replication, and Application Development.
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